Lowery v. . Perry

*134 Ruffin, J. We think His Hod op-did' sight in overruling-the demurrer. 1. An administrator who- voluntarily distributes- the estate amongst the next of kin ©f his intestate, can not require* them to refund unless he- alleges and proves-th-e existence of some special circumstances, such as aequit him o-f all blame and imputation of negligence, and may enable a court of equity to see tha-t it is- not consistent with the dictates of & good conscience that the loss should fall ©n him-.. He is required to be faithful, diligent and discreet.. Bu-t that he-should demand, when» about to make-distribution, refunding bonds from those into whose- hands the estate- is- to pass*, seems, according to all authorities, to- be accepted as the-highest evidence of good faith, diligence and discretion.. The very- case,, cited for the defendant, of Bumpass v. Chambers, 77 N. C., 357, after laying down the general rule as-above stated, speaks of the fact of his-taking such a bond as ©ne o-f the special circumstances- which will entitle- him- to relief. And so it is---ffii.th the case ©f State ex rel. v. McAleer, 5 Ired., 632, also cited for the defendant. It is true that in the case last referred to, it was decided by this court that the refunding bondsw-hi-ch executors and administrators- are authorised by the statute to- take- in the-mame of the-state, inure-solely toth-e benefit of the-creditors, and cannot be sued upon in the name of the-personal representative. But the fact that the- law is so- held, is t-he- very reason given- by J-u-dge Daniel, who- delivered- the- opinion» in that case, why the executor, should have taken as well a-bond payable to himself as-an indemnity against loss. As the instrument in which this-defendant promised to refund, was executed to the plaintiff individually, and as the demurrer admits that- upon taking the account of the estate it-was ascertained he had been paid too- much, the plaintiff' must be entitled to recover, unless there be something to. prevent in the other causes- assigned.. The defendant- says *135 that the plaintiff should have set forth in the complaint the consideration upon which his promise to refund was based. Has he not -done so in the statement that having in his hands after the payment of all debts of his intestate the sum of '$150 due the defendant as a distributee, he paid the same to him upon his giving him the paper writing sued on? This surely was a benefit conferred, and must constitute a sufficient consideration. 2. It was not proper that the complaint should set forth the “ account of the administration.” It states the fad that the result of taking the account was to show that defendant had been advanced the sum of $68.59, more than his full share of the estate, and that was all on that point it should have stated. It is never proper that pleadings should be encumbered with the statement of .legal conclusions, or of the evidence to be offered in support of the party’s claim. 3. It is not stated in the complaint that the paper writing was under seal, and the presumption therefore is that it was not. 4. Inasmuch as the action is founded on contract and the sum demanded does not exceed two hundred dollars, the justice’s court not only had jurisdiction of it, but was the only court known to our law that did have it. 5. The complaint seems to admit of but one construction, and that is, that the property alleged to have been returned, was in fact returned after the execution of the paper writing, but whether before or after is perfectly immaterial. 6. As the instrument sued on "was a simple contract, it was proper that the plaintiff should have demanded judgment for the exact amount of his claim, and no more. As the action is founded on a contract made prior to the adoption of the Code of Civil Procedure, it is governed by the law existing prior thereto, and upon the overruling of the demurrer the plaintiff is entitled to his judgment. But as he declares in assumpsit and seeks to recover damages, *136 the judgment can only be'interlocutory, and the amount of his damages must be ascertained by a jury. Judgment of the court below affirmed and the demurrer overruled. Judgment for plaintiff, and the cause remanded that there may be an inquiry to ascertain plaintiff's damages. No error. Affirmed.