Tbis action is brought to secure tbe cancellation of two notes, one for $1,500 and one for $900, given by plaintiff-to C. C. Gettys, defendant’s intestate, and secured by mortgages on plaintiff’s lands. Tbe plaintiff prays “for an accounting; for judgment for sucb penalties as may be due bim on account of usurious interest charged and paid; tbe cancellation of bis papers now held by tbe estate of tbe said O. C. Gettys,” etc.
Tbe only question presented on plaintiff’s appeal relates to tbe receiving of usurious interest by tbe administrator after tbe death of bis intestate, O. 0. Gettys. It is admitted that no usurious interest was received by Gettys during bis lifetime on either of tbe notes. Counsel for plaintiff admit they are unable to find any authority in tbis State to tbe effect that an intestate’s estate can be penalized for usury charged and received by tbe administrator and they cite none from other States.
Tbe .uniform rule is that no action will lie against a personal representative of a deceased person except upon some claim which existed against tbe deceased in bis lifetime. For a claim or demand accruing wbolely in tbe time of tbe administration, tbe administrator is bable only in bis personal character.
Tbe Court of Appeals of New York considered tbe subject in Fellows v. Longyon, 91 N. Y., 324, and declared substantially that if usurious *613interest is charged by a guardian, an action will not lie against tbe wards’ estate, but that tbe same must be brought against tbe guardian individually. There is a good reason for this law. . . . Tbe estates of infants and persons who have no control or management thereof are always under tbe control of tbe court, and tbe administrator or executor being an officer of tbe court, it is their duty in every way to preserve tbe estate and abide tbe law, and a failure to do so is a devisavit for which tbe administrator and bis bondsmen only are liable.
In Malone v. Davis, 61 Cal., 279, tbe Court uses tbe following language: “Nothing is better settled than that an executor or administrator is not answerable in bis official character for any cause of action that was not created by tbe act of tbe decedent‘himself. In actions against tbe personal representative on bis own contract and engagements, though made for tbe benefit of tbe estate, tbe judgment is de bonis pro-priis, and be is, by every principle of legal analogy, t.o answer it with bis personal property.” 39 Cyc., 1090; Eustace v. Johns, 38 Cal., 3.
"Upon plaintiff’s appeal, we conclude that tbe assignments of error cannot be sustained.
DEFENDANT'S APPEAL.
The defendant excepts because tbe judge refused to render judgment for tbe full amount of tbe $1,500 note with interest thereon from its date, December, 1910. Tbe court rendered judgment for $838 on that note with interest, and also for tbe full amount of tbe $900 note and interest, less tbe credits recited in tbe eighth finding of tbe referee’s report, which were payments made as interest to tbe administrator.
We see no error in this ruling, and it is not necessary to invoke tbe principle laid down in Churchill v. Turnage, 122 N. C., 426, and in Owen v. Wright, 161 N. C., 129, to support it, as tbe usurious interest was not received by tbe intestate but by bis administrator.
Tbe facts are that plaintiff owed one Ponder á debt which tbe defendant’s intestate agreed to settle for plaintiff. To secure him, plaintiff paid tbe intestate $455 in cash, and as security deposited with him the $1,500 note and mortgage. Tbe Ponder debt turned out to be $1,293, which tbe intestate paid for plaintiff, using tbe $455 for that purpose. This left tbe sum of $838 due tbe intestate by plaintiff, with interest.
TJnder tbe ruling of tbe court tbe estate of tbe intestate is credited with all tbe money paid out for plaintiff with interest and is charged with all tbe payments made to tbe administrator since intestate’s death. It is admitted that nothing was ever paid to him. We see nothing in this of which defendant can justly complain.
Affirmed.