Security National Bank v. Bridgers

Clakkson, J. At the close of plaintiff’s evidence the defendants, in the court below, made a motion as in case of nonsuit. C. S., 567. The court below sustained the motion and in this we can see no error. The evidence was to the effect that on 10 June, 1930, the Pinetops Banking Company was appointed administrator of the estate of W. R. Tolston. The following are the heirs at law and distributees: Thomas L. Tolston, Mrs. W. D. "Wooten, and Mrs. J. E. Brown. The estimated value of the estate was $20,000. Renunciation of the heirs at law and request that the Pinetops Banking Company be appointed in their stead is as follows: “"We, the undersigned, do hereby renounce our right to qualify upon the estate of "W. R. Tolston, deceased, and respectfully ask that you appoint the Pinetops Banking Company in our place and stead. This 10 June, 1930. Thos. L. Tolston, Mrs. "W. D. "Wooten, Mrs. J. E. Brown.” The clerk of the Superior Court for Edgecombe County, North Carolina, plaintiff’s witness, testified in part: “The Pinetops Banking Company qualified as administrator of "W. R. Tolston’s estate before me.” *95 Tbe question of “purported administrator” is not borne out by tbe record — if it were, it would be immaterial. Tbe plaintiff in tbis action in tbe Superior Court cannot attack tbe appointment of tbe bank as administrator, under tbe facts herein disclosed. Holmes v. Wharton, 194 N. C., 470; In re Estate of Styers, 202 N. C., 715. Tbe clerk can recall letters of administration wben tbey have been improvidently granted. In re Meadows, 185 N. C., 99. Tbe Pinetops Ranking’ Company bad been in process of liquidation since 21 April, 1931. Tbe bank went into liquidation in less than one year from its qualification as administrator. It was in evidence tbat W. R. Tolston died on or about 21 May, 1930, and bad in tbe savings account of tbe bank $13,650.26 wben tbe bank went into liquidation. In tbe checking account of tbe Pinetops Banking Company, administrator of W. R. Tolston, there was $1,254.78. Tbe total balance of both accounts in favor of tbe Tolston estate was $14,905.04. "With respect to tbis money in tbe Pinetops Banking Company, if it bad not been appointed administrator, tbe relation of W. R. Tolston and tbe bank was tbat of debtor and creditor. If it was appointed administrator and deposited tbe money in its bank, tbe same relation would apply. Roebuck v. Surety Co., 200 N. C., 196; In re Trust Co., 204 N. C., 791. Tbe Pinetops Banking Company, being tbe administrator, bad certain rights and duties. C. S., 101, provides if claim not presented in twelve months, representatives discharged as to assets paid. C. S., 109, provides tbat tbe final account can be compelled to be filed “at any time after two years from bis qualification.” C. S., 147, provides tbat legacy or distributive share may be recovered from executor, administrator or collector “at any time after tbe lapse of two years from bis qualifications.” Tbe defendants were in their legal rights under tbe above statutes, in bolding tbe money — under tbe facts and circumstances of tbis case. S. B. Enttrell, plaintiff’s witness, testified as to tbe solvency of tbe bank on 10 June, 1930, wben tbe bank was appointed administrator: “Tbe total assets of tbe Pinetops Banking Company on 10 June, 1930, was $423,765.40. Tbe total liabilities, exclusive of capital, surplus and undivided profits, as I figure it, was $318,068.34. On 2 January, 1931, working out tbe same figures, tbe total liabilities, exclusive of capital, surplus and undivided profits was $296,953.50, and tbe assets on tbat date was $340,371.44. Tbis book does not include liabilities and assets and surplus carried on tbe branch at Hookerton.” Of course, tbe stockholders were liable to be assessed if tbe bank became insolvent. Tbis was an additional asset. Tbe further contention is made by plaintiff tbat C. S., 6376, 6377, 6378, and 6379, were not complied with. Tbe Pinetops Banking Com *96 pany, when complying with these provisions, bad a right to act in certain fiduciary capacities, such as administrator, etc. C. S., 6379, reads as follows: “After any such corporation has been licensed by the commissioner, the certificate of the commissioner that it has been admitted to do business in the State and is licensed by the Insurance Commissioner and is solvent to an amount not less than one hundred thousand dollars, shall be, until revoked by him, equivalent to the justification of sureties, and full evidence of its authority to give such bonds or undertakings. There shall be no charge for the seal of this certificate.” C. S., 6378, provides that the commissioner shall examine into the solvency’of the corporation applying for license to do business. It will be noted that the above act (6379) says “is solvent to an amount not less than $100,000.” The evidence is that on 10 June, 1930, the total assets were $423,768.40 and the total liabilities, exclusive of capital, surplus and undivided profits, was $318,068.34. This shows that the assets over liabilities were over $100,000. It is further noted that the capital stock was $50,000, its surplus $40,000, the Ilookerton Branch had a surplus of $10,000. This would make total capital and surplus of $100,000. The joresumption is that the commissioner, who had the authority, complied with the law when the bank was licensed to act as administrator. It was said in Caldwell v. Bates, 118 N. C., 323 (325) : “That the directors are liable for gross neglect of their duties, and mismanagement — though not for errors of judgment made in good faith — as well as for fraud and deceit.” Minnis v. Sharpe, 198 N. C., 364; S. c., 202 N. C., 300. The principle of law as above written is safe, sane, and salutary, and we adhere to same in the present action. The plaintiff’s evidence is not sufficient to bring defendants to an accountability under the law and the nonsuit was properly granted in the court below. The judgment of the court below is Affirmed.