Merrill v. . Merrill

Smith, C. J.

(dissenting). As I am unable to concur in the opinion of the other members of the Court in the disposition made of the cause, it is proper and due to them that I should state the reason for my dissent:

1st. The appeal is from an interlocutory order, admitting an amendment in the introduction of the administrator de bonis non of J. R. Merrill, as an associated plaintiff in the further prosecution of the action. This works no change in the nature of the claim, and does not subject the defendant to any increased liability or inconvenience. The previous proceedings remain undisturbed, and the new plaintiff takes his place with the others, abiding by all that has already been done. The defendant is no moi-e injuriously affected than he ■would be in letting in a personal representative of a plaintiff, who dies pending the suit, to carry it on afterwards. Instead of being a disadvantage to him, *667it "would be his protection against a second suit for the same cause, by concluding the only person who could bring it.

2nd. The amendment is within the power of the Judge, and its exercise a discretion which cannot be reviewed or controlled in this Court. The consequences of the introduction of the additional plaintiff, in retaining the cause within the jurisdiction of the Court, are not now' presented, and the only inquiry is as to the competency of the Court to permit the attempted perfection of the record, not the effect upon the rights of the parties or the merits of the controversy. The cases are too numerous to require a reference that the power to permit amendments resides with the Judge.

3rd. In my opinion the amendment would preserve the jurisdiction acquired, and enable the cause to proceed to a final adjudication. The numerous cases wherein it has been held that, none but an administrator de bonis non of the original intestate can sue the personal representative of the first administrator after the death of the latter, or himself and the sureties to his bond, for the recovery of the administered estate, inclusive of damages for waste, that is, or ought to be, in the hands of the deceased, will be found, I believe, upon examination, to be cases in which the action was wrong from its inception, the plaintiff then having no right to bring it. The consequent ruling was, that it could not be maintained, nor could this difficulty be removed by the substitution of an administrator de bonis non, to whom letters issued during its progress, in the place of those who were wrongfully prosecuting the action as plaintiffs.

This is the principle decided, and its correctness I do not propose to question after its so frequent recognitions, even if otherwise open to criticisms.

But I know of no case wherein a party, in whom a right of action vested at the time of bringing the suit, was not allowed to proceed, because, on the death of a defendant, and in his representative capacity, that right devolved upon the administrator de bonis non of the first intestate, whom it was proposed to make a *668party also. The case of Goodman v. Goodman, 72 N. C., 508, is of the specified class.

The institution of the suit in the name of the distributee was after the death of the administrator, when the right of action had vested in an administrator de bonis non, and none other but he, when appointed, was competent to maintain the action. Consistently with this ruling, an administrator de bonis non, was required to be made a defendant, in order to the maintenance of the action. Hardy v. Miles, 91 N. C., 131.

But there is an authoritative precedent for the course pursued in the present case, found in Crawley v. Woodfin, 78 N. C., 4, wherein a creditor of McDowell, the intestate of the defendant Woodfin, brought his action against the latter and the sureties on his official bond, for a breach in the non-payment of his debt. Pending the action Woodfin died, and both his administrator and the administrator de bonis non of McDowell were made parties defendant.

The plaintiff' was allowed further, to amend his complaint by adding a new cause of action, founded upon the same demand. To this the defendant Pearson demurred, assigning as the ground therefor that “the administrator de bonis non of McDowell is the only proper relator in an action on the administration bond of Woodfin, and the relator Orawley cannot maintain the action.”

The demurrer was withdrawn, and a motion to dismiss the action made instead. The court refused the motion, and on the appeal the ruling was sustained, because an appeal would not lié from a refusal to dismiss.

There was the same difficulty presented in this case, and yet it was not intimated that the’ action must terminate in consequence of the death of Woodfin, and could not be prosecuted after the introduction of the two administrators into the cause. But it must be remembered that these adjudications were under a system of practice in which rights strictly legal were alone recognized and enforced in courts of law, which has been materially changed since. Thus it was held in Allison v. Robinson, 78 N. *669C., 222, that the heirs at law only could sue on a guardian bond to recover the moneys received as the proceeds of the deceased infant's real estate, wasted and lost, and not the administrator of the infant, for the reason that the fund belonged to them, and if recovered by the administrator, must be at once paid over to them. And so in Baker v. Railroad, 91 N. C., 308, the court looked through the legal right of the administrator, and recognized the right of those to whom the recovered fund would belong.

Now suppose the administration had been completed so far that nothing remained to be done except to pay over to the dis-tributees (and snch seems to have been the result reached in the report of the referee), why should not the administrator be admitted into the action, so as to conclude him from bringing another, and protect the defendants fully, and thus the distribu-tee be allowed to collect the estate?

Why, when the cause has reached this point, shall it be arrested and the trouble gone over again, for no practical good to any?

If the administration was incomplete, still this would not concern the defendants, or furnish them ground of complaint, because it is immaterial to them who recover, provided they .are secure against the claim of any other for the same fund, and there would be no difficulty as among the plaintiffs, since the administrator might take the whole if necessary, and render his administration account after it was finished.

It seems to me needless and unreasonable, as well as unsus-tained by authority, under such circumstances to put an end to the action at the instance of the defendants, and compel a repetition of all the trouble and expense incurred in thus approaching the final judgment, and I cannot unite with my brethren in holding that the law so requires.

Moreover, the present practice contemplates the continuance of a suit properly begun, and that it shall not terminate or abate by the death of a party or the transfer in any manner of the cause *670of action to another. It provides in express terms that “no action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue,” that is, does not itself become extinguished thereby, and that the court “ may allow the action to be continued by or against his representative or successor in interest.” In like manner, upon an assignment of the plaintiff’s interest he may continue to' prosecute the action or the assignee be allowed to take his place. Code, §188.

Now, in the case before us, the right to sue was in the distrib-utees when the suit was begun, and to prosecute it afterwards remained with them until the death of John Merrill, and then passed to the administrator de bonis non of J. R. Merrill, as soon as he was appointed. When the right to proceed with the action, though meanwhile in abeyance, thus vests in the appointee, it relates back to the death, in the same manner as when one suing in his own right dies, his representative comes in and assumes the place and succeeds to the rights of the deceased plaintiff. This is the result of the blending of the rules in law and equity which aim at an early and prompt as well as full adjustment of a.controversy in which all interested are made parties, and bound by what is done.

The course of reasoning pursued in the opinion, to show that the right to continue the action, when properly begun in the name of the distributees and heirs-at-law of the intestate to whom the fund sought to be recovered then belonged, ceased at the death of his administrator and could no longer be maintained by these plaintiffs, rests upon too many adjudications to be open to controversy, and I do not propose to question the correctness of the proposition. It was so held in the last ease cited, University v. Hughes, supra, and this must be so, since otherwise the defendant might be exposed to another action for the same fund at the instance of an administrator de bonis non from whom the judgment recovered would be no protection. But in that case the parties to the action remained the same, while the right to main*671tain the action was no longer vested in the plaintiffs, and yet the concluding part of the opinion intimates at least a possible different result if the administrator de bonis non had been introduced into the cause.

“ The plaintiff cannot maintain this action,” is the language employed, “ against the defendant executor, certainly not in the absence of the administrator de bonis non of Lee.”

I repeat that I have discovered no case in which the doctrine has been carried to the extent proposed in this, that the action begun and prosecuted by persons entitled to sue, must terminate at the death of the first administrator, and cannot be further carried on when the administrator de bonis non becomes a party so that the judgment will be final and conclusive when rendered.

The underlying error in the reasoning, in my opinion, consists in supposing that if this were permitted, there would be associated two distinct and independent causes of action in one suit, the one vesting in the distributee, the other in the administrator de bonis non, and this is not allowable under settled rules of practice. This is a misconception. There is but one cause of action against the defendant, and that is founded upon his refusal or failure to account for and pay over the fund to the pai’ty entitled, the distributees at first, the administrator de bonis non after-wards.

The right to sue passes upon the event mentioned, from the one to the other, but it is, by whichever exercised, for the same default and upon the same liability. The recovery of the fund is the common object of both, and there is no more inconsistency in this than in allowing the personal representative to recover upon a cause of action occurring in the life-time of the deceased. The law transfers the right of action in each case, but it is, nevertheless, one and the same, although prosecuted by another.

It is wholly immaterial so far as the defendant is concerned, for what uses the fund is sought or what disposition is to be made of it when recovered. This furnishes no reason why he should not be compelled to pay what he owes, nor is he injuri*672ously affected by the introduction of a new plaintiff. I am not willing to carry the doctrine beyond the limit of precedents.

Entertaining these views, I cannot give my approval to the rules of practice laid down in the opinion, fruitful1 as I fear they will be of embarrassments in their enforcement.