Parker v. . Grant

Asi-ie, J. The only question presented for our consideration by the record, is, whether there was any error in the ruling of the court below in disallowing the exceptions taken by the defendants, and sustaining that taken by the plaintiffs. The first exception is, that the referee refused to allow the defendants to retain the amount of a judgment rendered in the court of pleas and quarter sessions of Rowan county, in 1868, in favor of T. J. Meroney against John R. Parker for $1020.15, which was proved to belong to the defendant Rebecca. On the trial before the referee, the plaintiffs offered in evidence the proceedings in bankruptcy in the district *342 court of the United States, bearing date the 9th of July, 1870, by which it was ordered by said court that the said John R. Parker be forever discharged from all debts and claims, which by the act of bankruptcy are made provable against his estate, and which existed on the 30th day of May, 1868. This judgment was a debt provable under the bankrupt act. It was not a fiduciary debt; nor does it fall within the class of anyother non-provable debts. And if provable, it was a final discharge of Parker from the judgment. Withers v. Stinson, 79 N. C, 341; Blum v. Ellis, 73 N. C. 293; Knabe v. Hayes, 71 N. C , 109. The defendants’ counsel, however, contended that pleading bankruptcy was analogous to pleading the statute of limitations, and as no one can plead the statute of limitations to a debt due by his intestate but the administrator, so no other person could set up a defence of a discharge in bankruptcy from a debt due by him. But the analogy does not hold good. It is true, the administrator only can plead the statute in bar of a debt due by his intestate (except the heir when he is sued or another creditor in a creditor’s bill), and he may retain for a debt due to himself though barred by the statute of limitations. Williams on Executors-, 693.- And the reason is the obligation continues, and it is only the remedy which is suspended by the statute, and the administrator may, if he chooses, when sued by a creditor waive the right of relying upon the statute, and pay the debt. And if he may pay the debt to another when he might have pleaded the statute, the same author asks, “ why may he not pay himself.” But a debt discharged in bankruptcy has no longer any legal existence. It is extinguished by the discharge ; and the only instance in which it has been recognized as having any vitality, is, when after the discharge it is held to be a sufficient moral consideration to support a promise to pay it. *343 But here there was no promise made by Parker to pay this judgment after his discharge in bankruptcy. When on the trial before the referee the defendants offered the Meroney judgment in evidence to support a retainer for that amount, it was competent for the plaintiffs to show by any legitimate evidence that the debt was not due, and this they did by showing that the defendants’ intestate had been discharged in bankruptcy. The defendants, as the representatives of John R. Parker, held his assets in trust, for themselves and the other next of kin of the intestate, and had no right to waive the fact of his discharge, so as to rehabilitate the defunct judgment and set it up in support of a retainer against the rightful claims of the other next of kin. The reasons here given for maintaining the ruling of Iiis Honor upon the first exception, of the defendants, appty with equal force to his ruling upon their second exception, which was founded upon his disallowance of the defendants’ account against their intestate. For we are of the opinion that it, like the judgment, was extinguished by the discharge in bankruptcy ; for “ all demands against the bankrupt for or on account of any g.oods or chattels wrongfully taken or withheld by him, may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with interest.” Bump on Bankruptcy, 492. As to the exception taken by the. plaintiffs, which was sustained by the court, there is no error. Commissions are allowed to administrators and executors for the personal attention which they devote to the estate, and they are not allowed to make an extra charge for it. Schaw v. Schaw, Tay. 125 (76); Morris v. Morris, 1 Jones Eq., 326. There is no error. The judgment of the superior court is affirmed. No error. Affirmed.