The facts and pleadings in the case are fully fet [set] forth in (333) the opinion of the Court. The exceptions by the defendants to the report of the commissioner made in the case upon the accounts of the executors and referred to in the opinion of the Court are these:
1. That from the involved situation of the estate, the defendants had not time to settle the estate.
2. That owing to the absence of one of the executors, fully acquainted with the estate, and who was expected back in time to attend to the taking of the accounts, great injustice may be done to the executors.
3. That from the fact that the account was only filed on Thursday of this term, from the complicated nature of the account, not sufficient time was given to the defendants to give it a careful examination.
4. That the report does not set forth how much of the assets came into each of the executors' hands.
5. That all the parties concerned in the matter are not properly before the court, or the cause placed in such a situation as to them that it can be finally determined.
6. That the defendants are improperly charged in the account with a claim against Elizabeth Nesbitt for the sum of $1,000 or $1,200, for which a suit is now pending against Mrs. Nesbitt, in which she seeks to get rid of the claim or reduce it by sets-off.
7. That the commissioner has divided the balance equally between the children of David Craige and Samuel Foster per capita, when, agreeable to a fair construction of A. E. Foster's. will, the balance should be dividedper stirpes; in other words, that one-half of the balance should be divided among the children of David Craige, four in number, and the other half among the children of Samuel Foster, five in number.
8. That the commissioner has charged them with certain claims, one against Robert Huie, amounting to $400, and with a claim on John Jones for $650, against which the defendants have set-off to discharge the claims or to reduce them; that, owing to the absence of Robert Huie in another State, who is likewise connected with Jones' debt, at the taking of the account by the commissioner, the defendants (334) were unable to adjust the matter and obtain the proper vouchers.
9. That the commissioner has charged them for a claim against Robert Foster, the proceeds of a sale of a tract of land, which amount depends on a suit instituted by Robert Foster against the defendants to rescind the contract and recover back the purchase money. *Page 256
10. That the commissioner has not given them credit for bad or desperate debts or amount of counterclaims against accounts.
11. That the defendants have not received credit for the sum of $15 paid to Joseph Todd, crier at the sale, and $5 paid Henry Giles for counsel concerning the estate, the vouchers having been mislaid.
12. That the report does not show the claim which the defendants have against the plaintiffs or one of them, having been a large purchaser at the sale.
13. That by the will of A. E. Foster, the defendants are to do certain work about the family burying-ground, and to pay the expense out of the estate, and which work they have not been able to accomplish.
14. That by the said will Jane McCarter, a legatee in the will, is to receive a year's provision as well as provision for four hands for a year. The executor, Burton Craige, being her guardian, these provisions were furnished by him, and the defendants are entitled to credit therefor. Owing to the absence of Burton Craige, the other defendant was unable to lay the proper proof before the commissioner in order to obtain the proper credit.
15. That the commissions allowed by the commissioner are not adequate to the services rendered.
16. That proper allowance has not been made for costs in defending suits.
The cause coming on to be heard before Settle, J., at Spring Term, 1840, of DAVIE, upon the petition, answers, report of the commissioner and exceptions thereto, it was ordered that the exceptions be overruled and the report confirmed, and a decree was thereupon made, for the amount found by the report, in favor of the plaintiffs. From (335) this decree the defendants appealed to the Supreme Court. This case comes before us by an appeal from a decree of the Superior Court of Davie, rendered in a proceeding by petition. On an inspection of the record, it appears that at the Spring Term, 1838, of that court, the petition was filed by Milton Hobbs and Irene, his wife, and Sarah Foster, against Robert N. Craige, Burton Craige, Samuel Craige, John Craige, Giles Foster, Ellis Foster, Berry Foster and his wife, Mary, but that subsequently, by permission of the court, Giles Foster and Berry Foster and wife were stricken out of the bill as parties defendants, and, instead thereof, made parties plaintiffs. In the petition it was charged that Anderson E. Foster had died in May, 1836, having previously duly executed his last will and testament, whereof he appointed the defendants Robert and Burton, executors, *Page 257 and which, after his death, the said Robert and Burton caused to be duly proved; that by the said will, after some special devises and legacies, he disposed of all the residue of his estate, real and personal, in the following terms, viz.: "The balance of my property to be applied to the payment of my debts; should there be a surplus, it is my will that it be equally divided among the heirs of my deceased brother, Samuel Foster, and the heirs of David Craige." And the petitioners alleged that the petitioners, Irene, Sarah, Giles, and Mary, together with the defendant Ellis Foster, were the persons intended and designated in the said will by the description, "the heirs of my deceased brother, Samuel Foster," and the defendants Robert, Burton, Samuel, and John Craige were the persons thereby designated as the heirs of David Craige; they charged that of the residuum aforesaid so devised and bequeathed, a large sum, after satisfying all the just debts of the testator, remained in the hands of his executors; and they prayed that they might be compelled to account for their administration of their trust as executors, and be compelled to pay over to the (336) petitioners, respectively, what might be found due upon taking such account. The defendants Samuel and John Craige filed their answers, and thereby insisted that according to the proper construction of the will, "the heirs of Samuel Foster" were to take one moiety, and "the heirs of David Craige" were entitled to the other moiety, the equality of division there directed being between the roots or per stirpes, and not percapita or among the individuals embraced within those classes. The defendants Robert and Burton also put in an answer, in which the same question was raised, and in which they also contended that the petition had been filed prematurely, before the petitioners were entitled to demand an account or payment of what might be due them thereupon. The defendant Ellis Foster does not appear to have been served with any process, or to have entered his appearance to the suit, nor have any proceedings been had against him. At Spring Term, 1839, an order was made that the cause should be referred to John Clement to take an account, and at the Fall Term, 1839; the commissioner returned his account, to which the defendants filed exceptions. All of these exceptions were upon argument at the same term overruled and the report confirmed, and thereupon it was decreed that the petitioners Hobbs and wife should recover of the defendants Robert N. Craige and Burton Craige the sum of $1,050.40 1/2; the petitioners Berry Foster and wife should recover the like sum, and the petitioner Sarah Foster the like sum; and that the petitioners should respectively, before suing out execution, execute bonds payable to the chairman of the county court of Davie, in the penal sum of $2,110.81, with security, to be approved by John Clement, Esq., conditioned to indemnify and *Page 258 save harmless the said Robert N. Craige and Burton Craige, and to refund to them their proportional parts of all such sums of money as might be thereafter recovered of them as the executors of Anderson E. Foster, deceased, by means of any suit or suits that might be thereafter commenced against them, or any sets-off which might be allowed in any suit then pending; that the costs of taking the account should be paid out of the estate of Anderson E. Foster, and the residue of (337) the costs be paid by the said Robert and Burton. From this decree the defendants appealed.
There is no error in the interlocutory order directing the accounts to be taken. The act of Assembly making it obligatory on executors to settle the estate at the end of two years after their administration shall have begun does not authorize them to defer the settlement until that time without necessity. And it is competent to those interested to file their bill or present their petition for such a settlement as soon as they think proper, the proceedings upon such bill or petition being under the control of the court, who can prevent a premature decision thereon, and have the question of costs at their disposition.
We have examined the exceptions taken to the report of the commissioner, and think there was error in overruling the sixth of these exceptions. It is thus expressed: "For that the defendants are improperly charged in the account with a claim against Elizabeth Nesbitt, for which a suit is now pending against her, in which she seeks to get rid of the claim or to reduce it by sets-off." The facts in relation to this charge, so far as we can gather them from the report, are, that the executors were charged in the account with the amount of articles sold to Elizabeth Nesbitt, amounting to about $1,200, not yet collected, but for which a suit has been brought, which at the time of the report was still pending; and the commissioner reports, also, that should Elizabeth Nesbitt succeed in reducing the amount claimed, then the executors should be allowed a credit to the extent of that reduction. Now, upon this view of the facts, it would seem that the executors had not yet collected the money wherewith they were charged in this item; that nothing was shown from which it could be seen that they ought to have collected it; and until they had collected or ought to have collected it — or unless they had been guilty of some breach of duty in relation to the subject-matter of the claim — it was obviously unjust to make them debtors in account therefor. The proper course would have been, in regard to this item, and any others as to which the liability of the executors depended upon future events, to reserve them for a further account, which might be prayed for, after a decree in part upon (338) the matters of account definitely ascertained. *Page 259
We see no error in overruling the other exceptions. The first, second, third, eighth, eleventh, and fourteenth could not fitly be regarded as exceptions to the finding of the commissioner, for they assigned no errors therein, but alleged matters proper to be addressed to the discretion of the court upon a motion for further time to take the accounts. The fourth exception, for that the commissioner had not reported what portion of the assets came to the hands of the executors respectively, was properly overruled, because the answer of the executors sets forth a joint receipt and a joint administration of the assets. The fifth was properly overruled as an exception, because the matter therein alleged, that a necessary party had not been brought before the court, though valid as an objection upon the hearing to the rendition of a decree, established no error in the commissioner.
The seventh exception was predicated upon the position taken in the answers, that under a proper construction of the will the surplus of the testator's estate was divisible per stirpes and not per capita. This position cannot be maintained. Ward v. Stowe, 17 N.C. 509, andBryant v. Scott, 21 N.C. 155, are decisive upon this point. Exception 9 alleged that a suit had been brought by Robert Foster to rescind a sale made by the executors and to recover back the purchase money. Assuming this allegation to be true, there seems no sufficient reason why the possibility of such a recovery should prevent the proceeds in the meantime from being regarded as assets in their hands. It would be otherwise if it appeared that the proceeds had not yet been received. Then prima facie the executors were not chargeable with them. The tenth and sixteenth were too vague and indefinite to present any point to the judgment of the Court. The existence of the claim alleged in exception 12 does not appear to have been in any manner shown to the commissioner or the court, and the pleadings did not bring it forward for consideration. The commissioner, therefore, was not guilty of any error in omitting all mention thereof. The thirteenth (339) was properly overruled because the executors could not rightfully claim a credit for an expenditure which they had not made, and which they might never make. Exception 15, because the commissions allowed were not sufficient, appears to us to have been altogether unfounded. It must be an extraordinary case which could justify the very liberal allowance of commissions for which the executors were credited in the account, within 1 per cent of the largest rate of commissions which the law permits.
This Court is, therefore, of opinion that the order confirming the report of the commissioner is erroneous as to the matter embraced within the sixth exception, and of course that the decree founded upon that report is to that extent erroneous. *Page 260
But the decree is altogether erroneous in this, that upon the pleadings it appears that Ellis Foster has a joint interest with the petitioners in the legacy, for which this petition has been preferred, and the said Ellis Foster hath not been made a party thereto by any process or otherwise, nor is any reason alleged in the pleadings wherefore he hath not been made a party.
The decree rendered below is therefore reversed, in toto, and the cause remanded to the Superior Court for further proceedings thereon, as the parties shall be advised and the course of the court permit. The plaintiffs must pay the costs of the appeal.
PER CURIAM. Reversed.
Cited: Clark v. Edney, 28 N.C. 53; Clements v. Rogers, 91 N.C. 65;Gay v. Grant, 101 N.C. 209.
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