Temple v. . Williams

Merrimon, J., after stating the case. The court treated the issues submitted and the verdict of the jury upon them as immaterial, and held that, upon the face of the pleadings, the allegations of the complaint and the admissions of the answer, the plaintiffs were entitled to have an account of the estate of the intestate in the hands of the defendant Williams, administrator, taken, and gave judgment aecord-ingly. We think the judgment thus granted was a.proper one, and that the exceptions of the defendants cannot be sustained. It appears that the plaintiff William T: Temple and his late sister, Delia Ann Temple, the intestate of the plaintiff Hewitt, were the only next of kin of the intestate of the defendant Williams, administrator; that he never rendered any account of his administration to these next of kin, or to the' plaintiff, Hewitt, administrator; but it does not ap *88 pear that he certainly ever rendered any account thereof to any proper authority, and at all events, any account thereof binding and conclusive upon the plaintiffs. The plaintiffs are, therefore, plainly entitled to have an account taken under the order of the court to ascertain what property and effects went into the hands of the defendant Williams, administrator, what disposition he has made of' the same, and what, if anything, is due to tire plaintiffs according to their respective rights. The defendants, however, insist that some time prior to 1872, in a proper proceeding for the purpose, Joseph S. Jones was appointed receiver of the estate of the plaintiff, William T. Temple, then an infant, and the plaintiff Hewitt was likewise appointed receiver of the estate of the said Delia Ann, then an infant and his wife, and that these receivers examined an “account current” of the defendant Williams, administrator, were satisfied with the accuracy and justness of the same, and executed to him a “ discharge and release” from all liability to account further to the plaintiffs, a copy of which is set out above: and that this “ discharge and release” is effective, conclusively binding upon the plaintiffs, and cuts them off from all right to sue for and have an account as demanded in this action. This paper writing has not the plenary effect the defendants attribute to it. The statute, (Acts 1868-’69, ch. 201, § 22, The Code, § 1585) authorizes the court to appoint a receiver in case of the removal of a guardian, for the causes specified, “to take possession of the ward’s estate, to collect all moneys due to him, to secure, loan, invest or apply the same for the benefit and advantage of the ward under the direction and subject to such rules and orders in every respect as the judge may from time to time make in respect thereto, and the accounts of such receiver shall be returned, audited and settled as the judge may direct.” Such receiver is to serve a temporary purpose in place of a guardian, to man *89 age and care for the ward’s estate under the direction, supervision and control of the court, until another guardian shall be appointed; hence, it is provided, thattas soon as another shall be appointed, he may apply to the court at once for an order upon the receiver to pay over to him all the money, estate and effects of the ward. (§ 24 of act cited). The duties of the receiver are special in their nature. He is not invested by the law with the powers of a guardian,He acts under the direction of the court, and his action has effect because the court directs and sanctions the same. The action required by the statute (§ 47 of act cited) to be taken by the solicitor, in the cases provided for, is properly an action brought by him for the benefit of the ward when the guardian has been removed, and the infant is not a necessary, perhaps not a proper party to it. Becton v. Becton, 3 Jones Eq., 419. The infant is not, therefore, bound as a party to it by the record made in that behalf, and it is not conclusive upon him when he may afterwards, suing by his next friend, or suing after he comes of age, cal! his former guardian to account. The settlement with a guardian made by thé receiver under the direction of the court only raises a prima facie presumption that the account and report based upon it are correct. The present statute is substantially like that in the Revised Code, ch. 54, § 14, and takes the place, of it. This court, in construing that statute in Becton v. Becton, supra decided that the ward was not a necessary party to a proceeding to appoint a receiver under it, and that a settlement with the guardian authorized by it was not conclusive upon his rights. The court in deciding that such settlement raised simply a presumption in favor of the guardian, say : ■“ If it were allowed'a greater effect, the proceeding by the attorney-general or solicitor would, in many cases, be prejudicial to *90 infants, and it would have been better to have left them to the remedies which they had before the act was.passed.” It was not intended that the proceedings under the act referred to should conclude the ward as to his right to call the guardian to account. So that, in this case, if the paper writing mentioned above, intended as a “discharge and release” to the defendant Williams, administrator, had been sanctioned by the court, it would not be conclusive upon the plaintiffs. It would only, in such case, have raised a presumption in favor of the administrator that the plaintiffs might disprove. It does not appear from the record that the court in the proceedings in which the receivers were appointed, authorized them to examine the “account current” of the administrator, and in any contingency to execute the “ discharge and release” mentioned; nor does it appear that the paper writing, or the transaction of which it purports to be evidence, was ever reported to the court, or in any way had its sanction. So far as appears they executed it without any authority. This was beyond the scope of their powers as receivers in the absence of the order or sanction of the court, and therefore, their action was officious, and can in no way conclude the plaintiffs. The extraordinary action brought by Sexton against the defendant Williams, administrator, 'and the plaintiff William J. Temple, and his sister Delia Ann, cannot be upheld as an estoppel of record upon the plaintiffs. That action was brought against them while they were infants, as the heirs-at-law of the intestate of Williams, administrator, and it was no part of its purpose to require of the defendant Williams, administrator, either directly or indirectly, any account of his administration, nor was any such account ordered to be taken, or taken in any aspect of the case. The purpose was, to have the consent of the heirs- ’ at-law, and in such shape as to bind them, to allow a credi *91 tor of tlie intestate of the administrator to have a certain tract of land, that descended to them from the intestate, in discharge of his debt, because the administrator represented that he had no assets to pay it. The action did not propose any inquiry as to what property and effects of thé intestate had gone into the hands of the administrator, and what disposition he had made of the same, nor was any such inquiry instituted. The question of why he had no assets to pay the debt was not raised by the.pleadings, nor was it intended to raise such question. There was no purpose to raise or settle any question between the administrator and the heirs-at-law as to his administration. The matter of litigation in that action was substantially different from that in this. The material questions embraced and settled by'it were different from those presented in this action. The parties to the two actions are' different, and the purposes are different. The object of the present action is to compel the defendant administrator to render an account in detail of his whole administration, to ascertain what property and effects went, and ought to have gone into his hands, what disposition he made of the same, and what is due to the plaintiffs respectively. To sustain the plea of estoppel by former judgment it must appear that the matter, claim or demand in litigation has been tried and determined in a former action, and the identity in effect of the present and former cause of action must appear. Such a plea implies that, in effect, on a former occasion, the plaintiff brought an action against the defendant, or against one under whom the defendant claims, in respect to the very same cause of action now alleged, in which action judgment was given for the plaintiff or for the defendant. Falls v. Gamble, 66 N. C., 455; Tuttle v. Harrill, 85 N. C., 456; Latta v. Russ, 8 Jones, 111; Finger v. Finger, 64 N. C., *92 183; Russell v. Place, 94 U. S. Rep., 606 ; Big. on. Estoppel, 37, 39, 40, 103 et seq.; Bryan v. Malloy, 90 N. C., 508. There is no error. Let this opinion be certified according to law. No error. Affirmed.