Merrill v. . Merrill

His Honor granted the motion, and the defendant appealed. A motion was made to dismiss the appeal in the Supreme Court on the ground that the order did not affect any substantial right and was not appealable. *Page 658 The pleadings, indeed the whole record in this case, are very imperfect and informal. It appears, however, with tolerable certainty, that J. R. Merrill died intestate in the county of Transylvania some time in the year 1866, and John Merrill was duly appointed administrator of his estate. Afterwards, this proceeding was begun by the plaintiffs, who are the next-of-kin of his intestate, against him in the then probate court of that county, on the 19th day of May, 1873, for the purpose of obtaining an account and settlement of the estate, and distribution thereof. The proceeding was transferred to the Superior Court of that county at the Fall Term, 1873, thereof. In that court, it was repeatedly referred to a referee to take and state the account and make report. Reports were made, and each in its order was set aside. Some time in the year 1881, John Merrill, the administrator, died intestate in the county named, and the defendant Perry Merrill was duly appointed administrator of his estate. Afterwards, at the Fall Term, 1883, it was by consent of all the parties, plaintiffs and defendants, "ordered that the action be referred to W. W. Jones, Esq., to try and decide all the issues of fact raised by the pleadings, and the law arising upon said facts, and to take and state an account of the administration of the estate of said J. R. Merrill by John Merrill, and to ascertain and report whether or not the estate of said John Merrill, deceased, is liable to the plaintiffs or any of them, and if so, how much, or to what extent. The said referee shall make his report to the next term of this court, and shall report his findings of law and fact separately, and shall also report the testimony." On the 24th day of August, 1884, Edward Shipman was duly appointed administrator de bonis non of the estate of J. R. Merrill, the intestate of John Merrill, administrator. *Page 659 Upon the coming in of the report of the referee at the Fall Term, 1884, of the court, Edward Shipman, as such administrator, applied to be made a party plaintiff in the proceeding. The defendant opposed this application. The court allowed him to be made a party plaintiff according to his application, and thereupon the defendant excepted and appealed to this court. It is insisted, that no appeal lay from the order making the administrator de bonis non a party plaintiff, upon the grounds that it was within the discretion of the court to make it and not reviewable here; that it was interlocutory, and if reviewable here at all, it could not prejudice the defendant to allow the action to proceed to final judgment upon its merits before taking the appeal. In our judgment, these grounds of objection are not tenable, because the order appealed from put directly in question the liability of the defendant to answer in this action at all. As we shall presently see, the plaintiffs next-of-kin, could not maintain it against the defendant, nor could the administrator de bonis non, without first changing the cause of action, not simply in the form of alleging it, but as well in substance and nature. The defendant contended that the practical effect of the order was to constitute a new action, in one pending that could not be maintained against him, and to introduce a new party plaintiff, solely interested, and a distinct and new cause of action, so that the question was, not whether the court exercised a discretionary power in making proper and necessary additional parties, but whether it had any power to make such order. This question is obviously reviewable in this court. It is well settled in respect to the time when it may be taken, that an appeal always lies at once from an interlocutory order or judgment that may in effect put an end to the action, or that may prejudice a substantial right of the party complaining, if the appeal should be delayed until after the final judgment upon the merits. Moreover, the power conferred upon the Superior Court by The Code, §§ 184, 189, to make additional parties to actions, is *Page 660 not a power to be exercised in all cases in the discretion of the court, not subject to review in this court. Generally, whenever it is so exercised as to affect injuriously a substantial right of the party complaining, such exercise of it is reviewable in this court upon appeal taken, in some cases at once, in others after the final judgment. This is so upon principle. The statute does not confer the power to make parties to actions generally, as it does to some extent to amend pleadings, but it designates particularly a variety of classified cases in which it may be done, thus clearly indicating a limitation upon the power conferred, and recognizing its importance to the original parties to the action. Who shall and who shall not be made additional parties, are questions in many cases of serious moment, and we can see no reason why the decision of a question of law, arising in the exercise of the power to make them, shall not be reviewed like the decision of any other question of law affecting the merits in the progress of an action. There is nothing in the statute nor in the nature of the power that forbids it, and justice may require it. Besides, this court has entertained appeals in numerous cases, sometimes taken at once, and sometimes after the final judgment, from the orders of the Superior Court, making or refusing to make additional parties to actions. Rollins v. Rollins, 76 N.C. 264; Colgrove v. Koonce, 76 N.C. 363;Phoebe v. Black, Id., 379; Stephenson v. Peebles, 77 N.C. 364. We may add in this connection, that the order appealed from, practically put an end to the action, for the next-of-kin plaintiffs could not maintain it against the present defendant. We are, therefore, of opinion that the defendant had the right to take the appeal, and this Court must decide the question presented by it. It appears from the record, that the plaintiffs, the next-of-kin of J. R. Merrill, deceased, had a cause of action against the administrator of his estate, John Merrill, but when the latter died, pending the proceeding and before he had completed his *Page 661 administration, their cause of action against him did not survive against the administrator of his estate, the present defendant. The defendant, as administrator, held and was charged with any assets in his hands belonging to the estate of J. R. Merrill, not for his next-of-kin, but solely for the administrator de bonis non of his estate. It is well settled upon principle and authority, that the law does not vest the title to the property of a person who dies intestate in his next-of-kin, but in his administrator. If the administrator should die before he had completed the administration, the title to such property does not vest in his administrator, but in the administrator de bonis non of the first intestate, and so on indefinitely, until the estate in the hands of the first, or some subsequent administrator de bonis non, shall be completely settled and distributed according to law. The next-of-kin of the intestate, cannot proceed against the administrator of his deceased administrator for a settlement and their distributive shares; they must go against the administrator de bonis non of the intestate whose distributees they are, and plainly, because the title to the assets, in whatever shape to be distributed, is in him. To this effect, without exception, are all the decisions upon this subject in this State, as well those decided before, as those decided after the adoption of The Code method of procedure, blending law and equity. In Goodman v. Goodman, 72 N.C. 508, it was held, Justice Bynum delivering the opinion, that after the death of an administrator and before the appointment of an administrator de bonis non, the next-of-kin could not maintain an action upon the deceased administrator's bond, and that the estate was in abeyance, and neither the next-of-kin, nor any other person except the administrator de bonis non, had the right of action upon the bond of the original administrator. It was further held that the next-of-kin, having brought suit upon the deceased administrator's bond, the Court had no power to amend the pleadings by striking out the name ofthe next-of-kin and inserting that of the administrator de bonis non, subsequently appointed. *Page 662 In Lansdell v. Winstead, 76 N.C. 366, the same learned Judge said: "An administration can be effected only by collecting the assets, paying the debts, and making a final distribution among the next-of-kin. If an administrator dies before this is done an administrator de bonis non must be appointed, and so on ad infinitum until a final settlement and distribution of the estate is made. * * * * * * The rule is therefore inflexible, that the next of kin cannot call for an account and distribution of an intestate's estate, without having an administrator before the court." In Ham v. Kornegay, 85 N.C. 119, the administrator had settled the estate of his intestate, and made final report to the probate court showing a balance in his hands, and two of the next-of-kin had received their distributive shares from the administrator, and the latter having died, the third distributee brought suit upon the administrator's bond to recover her share. It was held that she could not maintain her action, that the administrator de bonis non of the intestate of the first administrator alone was entitled to sue upon his bond, and the next-of-kin must look to him for their distributive shares. In this case, Justice Ashe said: "An administration is never complete so long as there are debts uncollected, or assets remaining in the hands of the administrator for distribution. * * * * If an administrator dies before this is done, his administration is unfinished, and an administrator de bonis non must be appointed to finish his administration, and so on ad infinitum until a final and complete distribution of the estate." In the case of University v. Hughes, 90 N.C. 537, the above mentioned cases were cited with approval. That case was in all material respects like this: "John Lee, an alien, died intestate in the year 1863, in the county of Northampton, and Samuel Calvert was appointed his administrator. At December Term, 1865, of the Court of Pleas and Quarter Sessions of that county, commissioners were appointed to audit his account as administrator, and make report to the next term of the court. At March Term, *Page 663 1866, the commissioners made and filed their report, showing a balance in the hands of the administrator of $3,990.35 in Confederate money. This report was ordered to be `certified and recorded.'" The University brought its action against the "administrator and the sureties upon his bond, demanding judgment for the penalty of the bond, to be discharged upon the payment of $306.69, the alleged value of the Confederate money and interest thereon. Pending this action Samuel Calvert, the administrator, died, leaving a last will and testament, and the present defendant, W. H. Hughes, duly qualified as executor thereof, and became a party to this (that) action." The defendant insisted, that his testator having died pending the action, the plaintiff could not recover therein, because the funds in the hands of his testator, as administrator of Lee, remained in his hands as executor, only for the administrator de bonis non of Lee, and the latter alone could maintain an action for it. This court so held, and in the opinion said: "The plaintiff brought this action to recover a fund in the hands of the testator of the present defendant, and administrator of Lee. While the administrator lived, the action could be maintained; the alleged fund was in his hands as administrator, undisposed of; he could manage, control, and do what he ought to do about the same. When he died, his administrator, or executor, held the fund, not for distribution, nor for the plaintiff, nor for any purpose, except to turn the same over the administrator de bonis non of Lee, when he should be appointed." When the administrator, the testator of the defendant, died, the plaintiff's right of action against him ceased. The right to the fund passed into the hands of the administrator de bonis non, and he alone had the right to sue for it. If there was no such administrator, as it seems there was not, the fund remains in abeyance and will continue to do so until one shall be appointed." It seems to us that these cases show clearly that the next-of-kin plaintiffs have no cause of action against the defendant. They had, just as the plaintiff in University v. Hughes, supra, had, a *Page 664 cause of action at the time the action began against his intestate, who was the administrator under whom they claim as distributees; when he died, their cause of action did not survive against his administrator, but against the administrator de bonis non of the intestate under whom they claim. This action did not necessarily abate — they might have made the administrator de bonis non a party defendant; indeed, they ought to have done so, as he was the only person whom they could then properly sue — the law vested the title to the assets in him, and to him they must look for their distributive shares. They improperly prosecuted their action for a long while fruitlessly against the present defendant. They had no right to do so; an administratorde bonis non ought to have been appointed according to law upon the estate of the intestate whose next-of-kin they are, at once after the death of his administrator, and they ought to have made him defendant in the action, and not the present defendant. They being interested, might have had such administrator appointed. That they did not, was not because of any defect in the law, but because of their neglect, or lack of information as to their proper course of action, which was their misfortune. The court had no authority to make or allow the administrator de bonisnon to be made a plaintiff in this proceeding. To do so, was not simply to introduce a new party, but a party having a different, new, and distinct cause of action, arising years after the proceeding began and while it was pending. The next-of-kin seek a distribution of the estate of the intestate of the administrator de bonis non, but the latter seeks to recover the assets belonging to the estate of his intestate, for the purpose of paying, first the costs of administration and debts due from the estate, and secondly for distribution to the next-of-kin according to their respective rights. The defendant is accountable to him, not to the next-of-kin. In due time and in order, he will account to them. Comprehensive as The Code of CivilProcedure may be in its terms, spirit, and policy, it does *Page 665 not contemplate or allow two causes of action, distinct and different in their nature, and between different parties, to be litigated in one and the same action, wherein the plaintiffs, or some one or more of them, have rights more or less adverse to each other. Wade v. Sanders, 70 N.C. 277,Colgrove v. Koonce, supra, McDonald v. Morris, 89 N.C. 99, AshevilleDivision v. Aston, ante, 588. The court has no authority to convert a pending action that cannot be maintained, into a new one, by admitting a new party plaintiff solely interested, and allowing him to assign a new and different cause of action, if the defendant shall object. The statute allowing necessary additional parties to be made in an action, does not contemplate such an exercise of power. There is neither principle nor statute, nor practice, that allows such a course of procedure; it would certainly lead to endless complications, confusion and injustice. An action separate and distinct from a pending one, must be begun according to the ordinary course of procedure. In this case, if the administrator de bonis non should be introduced as a party plaintiff, he alone could properly litigate with the defendant — his co-plaintiffs would have no cause of action. He might not wish, upon examination, to be bound by all that had been done in the proceeding — it might be prejudicial to his rights to be so bound. In such case, could or would the court rehear the matter settled, make new orders, and have accounts re-taken? The new plaintiff would have to plead anew and assign a new and different cause of action in himself. All this would generally lead to confusion. Further, after the litigation with the defendant should come to an end, then the administrator plaintiff would need to ascertain what costs and debts he had to pay, what property he had to sell, what debts to collect, and then, at last, he would turn about in the same action and account with his co-plaintiffs, in an adversary relation, and this might lead to litigation with them or some of them.Reductio ad absurdum! *Page 666 There may be possible cases in which it would be convenient, if not very expedient, to have the next of kin and the administrator de bonis non join in a proceeding, as is sought to be done in this case, but occasional cases, for mere convenience sake, cannot be allowed to displace and subvert a well settled and wholesome rule of procedure. This case is different from that of Hardy v. Miles, 91 N.C. 131. That case is peculiar. While the rule of procedure as here stated is distinctly recognized and upheld, the court decided that under the circumstances of the case, the plaintiff claiming under the will, might make the administrator de bonis non, cum testamento annexo, a party defendant, upon the ground, that the latter had failed to seek the relief the plaintiff was seeking by his action. There is error. The order of the court below making the administrator debonis non a party, must be reversed. To that end, let this opinion be certified to the Superior Court according to law. Error. Reversed.