Allen v. . Royster

Merrision, C J. after stating the facts: The defendants can have no benefit of their exception to the refusal of the Court below to grant their motion to dismiss the action, if the motion had merit, because they did not appeal. The motion here to dismiss the action is without merit. The complaint alleges a cause of action. It need not necessarily allege that two years had elapsed next after the administrator qualified as such, and before the action began, because the administrator might consent to account fully or partially with the next of kin before such lapse of time, and if there existed valid reasons why he should not, he should set these up as matters of defence in a proper way. It might turn out that the Court would require the administrator to account with the distributee in some measure, and stay the *282 action as to the final account at the end of two years. Clements v. Rogers, 91 N. C., 68, and the cases there cited; Godwin v. Watford, decided at this term. Moreover, the defendant alleges that he has duly and fully administered the estate, and thus, in effect, admits that there is no substantial reason why he shall not be called to a final account with the next of kin by this action. The motion to dismiss the action must, therefore, be denied. As to the first exception, we are of opinion that, if it be granted that the Clerk should have examined and approved the account filed by the defendant administrator, and which was read in evidence on the trial, the plaintiff objecting, he did so in effect. He was present, gave directions, saw what was done, heard what w'as said when and while the account was being examined in his presence, and he endorsed his approval thereon. The Deputy Clerk was simply acting as his servant, and aided him in the examination of the account. The Clerk clearly intended to, and did, exercise his authority, although he may not have been as circumspect as he should have been, and did not scrutinize the several matters and items embraced by the account and the vouchers as thoroughly as he should have done. The statute (The Code, § 1399) makes such sworn account, thus examined, endorsed and filed in the office of the Clerk of the Court, prima facie evidence of its correctness. But it was not conclusive against the plaintiff, nor would it be against creditors, or any person interested adversely. It simply shifted the burden of proof, as to the correctness of what it contained, to him who alleged the contrary. Grant v. Hughes, 94 N. C., 231; Grant v. Reese, id., 720. The Court, therefore, properly admitted the account in evidence, not as at all conclusive, but subject to the plaintiff’s right to contradict it by any proper evidence. The other exceptions may be disposed of together. The defendant administrator was certainly entitled to be allowed a credit for reasonable compensation he may have paid to *283 counsel who advised him in the due administration of the estate, including the bringing and prosecution of necessary actions brought by him, and in defending such as were brought, against him, including that for a final settlement of the estate. But an administrator should not be allowed credit for fees paid to counsel in the defence of an action to compel him to a final account with the next of kin, whe'n he unreasonably, wilfully and, through dishonest and fraudulent motives, refused to account to them. This is so, because, in such case, the purpose is not to promote and secure the just administration, final settlement and distribution of the estate, but to promote selfish and sinister purposes of the administrator, personally. His purpose is not to promote, but to defeat the right of those justly entitled to have the estate. The case settled on appeal states that “ there was evidence tending to show that the horse (sold by him) was purchased for the administrator, and he was 'worth, at the time of the sale, a larger sum than the sum returned by the administrator; and that the rents received, or that should have been received, by the administrator, were of greater value than $40 (the amount he accounted for). There w7as also evidence tending to controvert these facts.” Such being the evidence, and it so conflicting, the Court should have further instructed the jury that the defendant could not be allowed fees paid by him to counsel for defending this action, if he sought to cheat and defraud the estate and the plaintiff by buying the horse himself for less than his reasonable value, and by dishonestly failing and refusing to account for the rents received by him; and further, that he would not, in such case, be entitled at all to commissions for such sums of money as he ought justly to have accounted for, but did not. An executor or administrator is not entitled to commissions if he fails to discharge his duties faithfully and honestly. Grant v. Reese, supra, and the cases there cited at pages 731 and 732. Of course, it would be otherwise in this case if the defendant administered the estate in his hands faithfully *284 and justly, and there was evidence tending to show that he did, as well as the contrary. The evidence of the witnesses introduced to prove what was reasonable compensation to the counsel of defendant for his services in this action was competent to be submitted to the jury, in the view that the defendant made defence in good faith, with a view to a just final account and distribution of the estate. We may add that, in allowing credit to the defendant on such account, regard should be had to compensation paid to counsel in the course of the administration, because the defendant should be allowed credit for reasonable counsel fees paid about the whole administration. Tie cannot, ordinarily, be allowed to pay counsel fees for particular services, when he should have counsel general^ as administrator. He must observe a just and reasonable economy. There is, therefore, error. The plaintiff is entitled to a new trial, and we so adjudge. To that end, let this opinion be certified to the Superior Court. It is-so ordered. Error.