Jordan v. . Spiers

Avery, J.: In discussing the power of one of several personal representatives to act for his associates, in the case of Gordon v. Finley, 3 ITawks, 239, Judge -Henderson said : “ One administrator cannot alone, when there are more, make a sale. They are in this respect unlike executors, for all of the administrators together represent the intestate, whereas each executor represents the testator.” Ward v. Sparks, 1 Dev. & Bat., 389. The appellant Rea cannot maintain the position that he, as surety, is discharged by indulgence extended to the principal in the undertaking (under The Code, § 237) to pay such costs and damages, including rents and profits, as the plaintiff might recover, unless he can first show a binding agreement on the part of the creditor to forbear to proceed against the principal for a fixed period without reserving the right to move meantime against the surety. Forbes v. Sheppard, 98 N. C., 111. If, however, the surety shows a valid contract extending the time of payment for the benefit of the principal in a bond or undertaking, made without the knowledge or consent of the former, such agreement operates to exonerate the surety from liability. Carter v. Duncan, 84 N. C., 676; Scott v. Harris, 76 N. C., 205. If Picot had- no authority to sell personal property belonging to *347 his intestate without the consent of his co-administrator Vann, we do not think he could lawfully exercise the more important and dangerous power of compromising a debt due his intestate, and thereby release the debtor in part of responsibility, on receiving only a portion of the amount.due, without consulting one who had been commissioned by the officer appointed by law for the purpose of securing the benefit of the judgment of both in reference to every such important transaction. ' It is in order to divide responsibility and multiply counsellors that the Clerk is empowered in his discretion to give letters of administration to one or more of the next of kin. Such precaution on his part is in vain, if either the widow or the next of kin can compromise all of the solvent credits and dispose of all of the chosesin possession without consulting the other.; We are aware that authorities differ upon this subject, but we prefer to adhere to the principle as stated by Judge ITeNdekson, because it is safer and more reasonable to do so. A testator is supposed to repose a special trust and confidence in every person named by him as executor, but the object of our statute is to give the power to the Clerk to utilize the combined wisdom of two or more agents in the management of fiduciary matters under his supervision.’ We fail to discover in the statement of the case on appeal any evidence tending to show a subsequent ratification by Vann of the agreement entered into by Picot, his co-administrator, without his knowledge or consent. It does not appear affirmatively that Vann was consulted as to the application of the one hundred dollars paid down. When the agreement was subsequently set up by answer in the nature of a plea since the last agreement, the defendants refused in their reply to recognize it, denominating it an alleged agreement. After Picot had received the money without the consent of Vann, and presumably paid it over to the persons -lawfully entitled to receive it, we cannot readily conceive.of *348 any step other than the expression of his dissent in the replication filed, that it was incumbent on Vann to take, in order to show affirmatively that he repudiated the unauthorized conduct of his associate. If the money was within his control, he still claimed a balance due from Spiers for rent, in any view of the situation, amounting to more than one hundred dollars, and he was not authorized to refund the sum paid to Spiers when such was the state of accounts between Spiers and his intestate. It does not appear that Vann assented to a single continuance from the time he filed his reply repudiating the agreement until the trial term, when the Court allowed the payment as a credit on the amount of damages for rents and profits found by the jury. The only positive act of Vann in relation to the matter was the filing of the reply, in which both he and Mary Parker joined, and in which the agreement set up was denominated an alleged agreement. If the plaintiffs are bound by the contract made by Picot, it must be by reason of some positive act of affirmation or adoption of the agency of Picot by Vann after being informed of what he had done. No such act has been shown. The judgment of the Superior Court is Affirmed.