The defendant by his answer denied any appropriation of the estate by his testator to his own use, and insisted that it had been properly administered. Further, that his testator in his lifetime had made a settlement of his accounts as administrator, with three commissioners appointed by the county court; that the plaintiff Wood was present when that settlement was made, and attended to it on his own account and as guardian for the plaintiff Penelope; and submitted whether the plaintiffs were not barred in this suit by that (68) settlement.
On the coming in of the answer, it was referred to the master to take an account, without prejudice to the matter of defense insisted on in the answer.
The master reported a larger balance due the plaintiffs than that ascertained by the account taken before the commissioners; that the negroes belonging to the estate were divided in December, 1818; that the administrator had hired out those belonging to the plaintiff Penelope, during 1819, and had never accounted for the hire. The defendant excepted to the report because the master "charged the defendant with the hire of the negroes belonging to the plaintiff Penelope for 1819, when he ought to have rejected all evidence thereof, as it was not claimed in the bill or included within its allegations." By consent the cause was heard upon the defense set up in the answer, and also upon the exceptions. *Page 50 Whatever may be the character of the statement which the defendant calls a settled account, it certainly is not such a statement or settlement as precludes a bill for an account and drives the plaintiffs to a bill to surcharge and falsify. It may and possibly should have some weight in taking the account, particularly where the person who stated it, as in the present case, is dead. It is not a stated account, because the adverse parties had no compulsory process to compel the attendance of witnesses, or any right to controvert it. All that was conceded to them was a mere matter of courtesy, including notice, for it appears that they were present; but whether they had notice in time to prepare for an investigation does not appear. The principal objection, however, is that they were not parties, and therefore could not compel the attendance of witnesses. Nor does it appear that the account had been rendered to them beforehand, so as to enable them to (70) inform themselves of its correctness.
It is next objected that the hire of the negroes for 1819 ought not to be included; first, because it is not within the charges in the bill, and, secondly, if it is, it arose after the union of interests in the plaintiffs had ceased.
As to the first point, I think it is within the charges of the bill. The bill calls for an account until the division and delivery over of the slaves — for I must so understand it. The allotment of the negroes between the mother and daughter was made at the close of 1818, and the first part allotted to the mother delivered to her; the defendant retained the daughter's share a year longer, as I understand the bill, in connection with the proofs; for it is not stated when that was delivered. The bill, therefore, contains a charge for 1819. As to the second point, viz., that the bill is multifarious, asserting a separate interest in the daughter (after the division) in a joint suit with the mother. This, I think, is incorrect in point of fact. They had a common interest before the close of 1818, which continued until the division was ratified by the daughter.
Notwithstanding the delivery to the mother, the mother and the daughter both retained their rights in the whole until the daughter ratified the division; for the consideration that the mother surrendered her claim to those allotted to the daughter was the ratification of the allotment made to the mother. So that in strictness the property remained in common until the division became binding on both, as it could not bind one unless it bound both.
The defendant is liable to pay full hire for 1819, for his intestate, when rendering his account, failed to include it; and even under these circumstances I think the hire very high. Yet, as it is according to the evidence filed, and we have no data by which to correct it, and to reduce *Page 51 it we must refer the matter again to the master, who with the same evidence would make the same report, it must be submitted to with reluctance. We would correct it; but the remedy might be (71) worse than the disease.
PER CURIAM. Exceptions overruled and decree for plaintiffs.
Cited: Calvert v. Peebles, 71 N.C. 278; University v. Hughes,90 N.C. 541.