John Council died intestate in 1820, in Robeson County, and (419) at November term of that year administration of his estate was granted by the county court to Thomas Davis and John B. Johnson. The grant of the administration is entered on the minutes of the court, and therein it is stated further, that they entered into an administration bond in he sum of $10,000, with Jesse Jackson, John Curry, Willis Council, and William Wilkinson as their sureties.
The bill is brought by the next of kin of the intestate against the said administrators and the said sureties, except William Wilkinson, who died and whose administratrix is a party defendant. It was filed in 1840, and states that in 1833 the said administrators had wasted the assets of the intestate, and that, in order to recover the sums due to them respectively, the next of kin instituted an action on the administration bond against the obligors therein; and that, pending the action, *Page 296 the bond in some manner became lost or mislaid, and that, being unable to establish the loss before the jury, they were nonsuited in the Spring of 1840. The bill states that the said bond was duly executed by all the said parties, and that the plaintiffs have been unable, after diligent search by the clerks of the courts, to find it, or to learn what has become of it; and the prayer is for a discovery or relief by having an account of the estate taken, etc., and decree for what may be found to be due to them against the principals and their sureties. The bill was verified by the oath of one of the plaintiffs.
The bill was taken pro confesso against all the defendants, except Willis Council and the administratrix of Wilkinson. The former denies that he executed such a bond, as far as he can recollect. He admits that one of the administrators applied to him to become his surety; but he says that he became much intoxicated, and has no recollection or (420) belief that he signed the bond. He states further, that he has understood that the bond had blanks in it, which rendered it ineffectual, and that they were afterwards filled up by one of the plaintiffs or at his instance; and he insists, for that reason, that the bond, if executed, was not obligatory. The answer further states that the defendant believes the plaintiff William Davis, who married the intestate's widow, destroyed the said bond or suppresses it in order to conceal its defects.
The defendant Mrs. Wilkinson has no knowledge on the subject, and leaves the plaintiffs to their proofs. The evidence is entirely satisfactory upon the point of the execution of the administration bond by the several persons stated in the bill and the minutes of the court. The clerk of the court says he has no doubt it was duly executed and was payable to the justices of the county court, as that was then the form used in the court. He states, likewise, that while the suit at law was pending, Davis and he were looking at the bond, when Davis called his attention to the circumstance that the name of the obligors who had executed the bond were not inserted in the body of it, and that he, the witness, then wrote their names in the bond, considering it his duty to do so. As a security to the present plaintiffs the instrument cannot be affected by that act of the clerk, who was a stranger to them. Besides, if the clerk had destroyed the bond, or if it were originally defective, the plaintiffs would still be relieved in this Court to the extent to which they could have remedy on the bond at law, if it, were valid and in existence. Armstead v. Bozman, 36 N.C. 117. *Page 297
There appeared upon the evidence at the hearing some, though not very strong, cause to suspect that the plaintiff Davis might have suppressed the bond. Although the jurisdiction of this Court (421) upon lost bonds is assumed upon the grounds of the oath of the party as to the loss and of the indemnity decree, as explained in Fisherv. Carroll, post, 485, yet we conceive the Court would not be found nor at liberty to help an obligee if it should appear affirmatively that, instead of losing the bond, he had destroyed or suppressed it. An inquiry was therefore directed on that point, and it has resulted in satisfying the Court that there is no just reason to impute to that or either of the plaintiffs the charge of destroying or cencealing [concealing] the instrument, but that it has been in fact lost or mislaid — the present and late clerks having stated that they were unable to find it in the office and had no knowledge where it is.
It must be declared, therefore, that William Wilkinson and the other defendants duly executed the administration bond in the penalty of $10,000, and that, in consequence of its being lost, the plaintiffs are entitled to relief therein against the obligors in this Court for the sums due to them as next of kin of the intestate, within the penalty of the bond. And it must be referred to the clerk to inquire what sums may be due to the plaintiffs respectively in the premises.
PER CURIAM. Decree accordingly.
Cited: Respass v. Jones, 102 N.C. 12.
(422)