Parker v. . Porter

S oheNOK, J. ¥e are of the opinion that when the defendants tendered into court cash money sufficient to- pay all of the indebtedness and liabilities of the estate of the intestate, including all costs of administration and all court costs in connection with this action, that his Honor should have entered judgment to the effect that the plaintiffs recover nothing more, and that the action be dismissed. The only interest that the plaintiff administrator could have in this action was the payment of the liabilities of his intestate, and when the defendants offered to make available sufficient cash money to pay all the liabilities of the estate, including costs of administration as well as of litigation, the said administrator had no further legal interest in or right to pursue the litigation. Since the plaintiff Kennon was simply an alleged creditor *34 of tbe intestate, be was protected by tbe tender of casb money sufficient to pay tbe liabilities of tbe intestate, and likewise ceased to have further interest in or right to pursue tbe litigation. Tbe claim of tbe plaintiff Cbitty, if indeed be asserts any individual claim, is based upon an alleged lease for tbe year 1934. That time has now passed and be has no further interest in tbe land, and if be has any just claim against tbe estate of tbe intestate it is but a liability of tbe estate included in tbe liabilities to cover which tbe defendants tendered casb money. It would seem, however, that Cbitty took tbe alleged lease with constructive notice, at least, of tbe deed to Sallie Porter, since said deed was duly placed of record prior to tbe date of said lease. While it is well settled that an administrator has the right, and that it becomes bis duty under certain conditions, to apply for license to sell tbe real estate of bis intestate to make assets with which to pay debts, it is necessary that tbe personal property shall first be exhausted. When this has been done and it has been ascertained that tbe personalty is insufficient to discharge tbe debts, resort may be bad to tbe realty. Tbe personalty, however, is always tbe primary fund for tbe payment of debts. C. S., 14; Shaw v. McBride, 56 N. C., 173; Clement v. Cozart, 107 N. C., 697. Personal property passes direct to tbe administrator and is by him passed to tbe distributees, while real estate does not pass to tbe administrator and from him to tbe heirs at law, but passes direct from tbe intestate to tbe heirs. Tbe only right that tbe administrator can have in tbe real estate of bis intestate is tbe right to subject it to tbe payments of tbe debts and costs of administration when tbe personal property is insufficient for that purpose. It follows, then, that tbe heirs at law, upon tbe death of tbe intestate, become seized and possessed of tbe real estate, subject to be divested if it becomes necessary to sell tbe realty to make assets. It is therefore logical that tbe heirs at law, and those claiming under them, should have a right to pay off tbe debts of tbe intestate, or tbe costs of administration, or both, that they may thereby take tbe real estate of tbe intestate free from any claims of tbe administrator. James v. Withers, 126 N. C., 715; 24 C. J., pp. 570, et seq. This case is remanded to tbe Superior Court that, upon tbe payment by tbe defendants of sufficient casb money into court to pay all tbe debts of tbe estate of tbe intestate, together with all costs of tbe administration, as well as all costs in connection with this action, judgment may be entered dismissing tbe action. Tbe disposition we have made of this case in no wise precludes any of tbe heirs at law of tbe late Britton Yaugban from attacking the deed *35 from the commissioner to their joint heir, Sallie Porter, for lack of consideration, fraud, or any irregularity in the partition proceeding of which they may be advised. We simply hold that the tender of cash money sufficient to pay all liabilities of the estate and all costs is a satisfaction of any cause of action alleged by the plaintiffs in this case. Eeversed and remanded.