Murray v. Barden.

Montgomery, J., (after stating the facts) : The plaintiff’s contention raised by several of their exceptions that the defendant was a. trustee of an express trust because of the fact that his testator had received the money of the plaintiffs as their guardian and agent and therefore that he had no right to purchase the claims of the plaintiffs arising out of the Vann legacy except for the full amount of those claims, principal and interest, and also that he cannot set up the Statute of Limitations against those claims, cannot be sustained. There is no evidence in the case that one cent of the money, received by the testator from the Vann legacy, ever went into the defendant’s hands. In fact, the evidence is to the contrary. The only estate of the testator at the time of his death was real estate in the County of Sampson, and three hundred and fifty dollars worth of personal property, the latter being subject to the year’s support. We are of the opinion however that the defendant failed in his attempt to plead the Statute of Limitations. The language of that plea was as follows: “That outside of the debts held and owned by said J. A. Powell, which have been duly presented and accepted by the defendant executor, this defendant alleges and pleads notice as aforesaid, and the Statute of Limitations of three, seven and ten years in bar of the recovery of said plaintiffs or any of them, and he prays judgment that *144 said Powell’s claim be admitted, and no other, and that he recover costs and expenses of the plaintiffs in this action.” That was but the statement of a conclusion of law, and not the facts from which it could be deduced. In Turner v. Shuffler, 108 N. C., 642, the language of the plea 'was in these words: “They plead the statutes of limitations of ten, seven, six, and three years as prescribed in The Code, to all said claims and aver that they are unable to plead the same more definitely to each and all said claims,” and the court there said, “This is clearly bad and insufficient pleading.” Along the same line, reference is made to the case of Heyer v. Rivenbark, 128 N. C., 270; Lassiter v. Roper, 114 N. C., 17. There was nothing either in the complaint or answer which could in any manner aid the insufficiency of the plea. The plaintiffs’ exception therefore to the referee’s conclusion of law, No. 3, ought to- have been sustained. The defendant J. J. Barden not having any trust finds in his hands arising from the Yann legacy had the clear right to purchase the interests of the plaintiffs, his sisters, in the Vann legacy, unless he practiced some fraud upon them in the purchase; and under the head of fraud, would be the withholding of any information from them as to the value of their interests, which information had come to him by virtue of his office as executor. The plaintiffs introduced no evidence before the referee tending to show that the defendant in any way had overreached the plaintiffs. They were as well acquainted with the lands of the testator as was the defendant and while the defendant as executor made no returns of the estate, he testified that he had received no money by virtue of his office as executor or in any other capacity from his father’s estate, and that the whole of the personal property was worth no more than three hundred and fifty dollars, and that his mother, the testator’s widow, was entitled to her year’s support out of that. *145 The plaintiffs’ exception to the 7th conclusion of law of the referee cannot be sustained. The interest of Rebecca Page in the Vann legacy, being personal property became the property of her husband Abner Page when she died, and his receipt to the defendant J. J. Barden for the amount of Mrs. Page’s claim was valid. She had received the money in her life time. The signature of Abner Page as administrator of his wife was prima facie proof that he was such administrator, and there was no evidence to the contrary. The other exceptions to the plaintiff, except those for the judgment itself, are without merit. The plaintiffs’ exception to the judgment, because it contained a decree that Daniel Page and Walter and Oscar Page had assigned their claims to J. J. Barden, the defendant, is founded on a misapprehension. Neither the referee’s yeport nor the judgment contains any such statement. In this connection however it may be well to say that the plaintiffs failed to file any exception to the 8th conclusion of law and affirmed by the judgment, to-wit, “That the children of Daniel Page, Ellen Carroll, Martha Carroll, arre not entitled to recover anything by reason of the Vann legacy.” The third conclusion of law as affirmed by the judgment, being erroneous as we have pointed out, will cure that failure however, as the 8th conclusion of law followed the third as a necessary consequence. That part of the judgment in which the lands of the testator were ordered to be.sold to pay the debts therein named, seems to be erroneous. As the case appears to us it was no part of the object of the action to have a sale of the lands of the testator. It was simply an action for the recovery of the amount due to the plaintiffs on account of the Vann legacy. The counsel of the defendant moved fór a certiorari to have sent up by the clerk of the Superior Court of Sampson County the order of reference in this case. The notice required in *146 such cases ha.d not been given to the other side and there was no motion to shorten the time of notice, and it was therefore declined. During the argument, the counsel of the defendant stated that that order of reference, made by consent, contained matters which would make the judgment regular. But the order is not before us, and we must follow the record. If, when the case goes back, that order of reference should be full enough to justify the judgment, the defendant can pursue such course, as he may be advised, to get the benefit of it. Error.