Kerns v. . Wallace

*189 BodmaN, J. This is a petition by administrators to sell land to pay debts, pending in tbe County Court at tbe time of tbe abolition of that Court, and then transferred to tbe Superior Court. Tbe defendants allege in tbeir answer that tbe plaintiffs have personal assets in tbeir bands sufficient to pay tbe debts. A referee was appointed to state an account. As there is no exception to tbis account, we must assume it to be correct. He reports that there are debts out-standing, and that tbe plaintiffs have no personal assets, except $3,341.60 in Confederate money. So that tbe question intended to be presented, and which ought, regularly, to have been presented by an exception to tbe account, is, whether tbe administrators are chargeable with tbis sum or any part of it. Before, considering that question, we refer to Finger v. Finger at tbis term, where it is said that a County Court, under tbe former system, bad no power on a petition like tbis, to make a decree respecting tbe administration account, which would bind tbe next of kin; that such a decree could only be made in a suit whose direct object was an account, and to whicji. tbe next of kin were necessary parties. But in passing on tbe plaintiff’s claim to tbe relief demanded, tbe Court is obliged, of course, to ascertain whether there appear to be personal assets in tbe bands of tbe administrators. If, in tbis case, tbe administrators are chargeable with tbe Confederate money, it must be either because they sold tbe property improperly, or sold it improperly for Confederate money, or negligently kept tbe money on band, instead of applying it to pay tbe debts of tbeir intestate when they might have done so. We find that on tbe 5th of Nov. 1863, they sold property for $3,277.51, which they received in Confederate money. They are charged with sundry small notes amounting, exclusive of those of James Wallace, to about $150, which we suppose tbe report to say they collected in Confederate money. It is matter of common knowledge that in Nov. 1863, if an administrator sold at all, be could sell for *190 Confederate money only. _ Now whether the administrator was justified in selling at that time, will depend very much on the kind of property sold, whether perishable or otherwise, on the probable willingness of the creditors to receive it, and upon other circumstances, none of which are stated. The fact of the sale at that date, stands bare in the report, neither supported by evidence showing its necessity, nor impeached by exception, or evidence, This Court cannot say, as a general proposition, that a sale by an administrator in Nov. 1863, was tortious under all circumstances. The administrators paid off debts to the amount of $887.13, and there are others now out-standing, to the amount of $436.92. If the administrators could have paid off these debts in 1863, it was their duty to have done so: but in the absence of all evidence, this Court cannot say that they were guilty of negligence in not doing so. The presumption must always be' in favor of a party charged with breach of duty. The burden of proof is on the party that charges negligence. What is said in Wiley v. Wiley, 63 N. C. 182, is not applicable in this case. We can see no error in the judgment below. Per Curiam. Judgment affirmed.