CREECH V. GRAINGER.

(Supreme Court of North Carolina. March 24, 1890.)

EXECUTORS-POWERS OF SUCCESSOR-TRUSTS.

1. Powers conferred on an executor to continue testator's business so long as, in the executor's judgment, it shall be profitable, and to pay out of the profits such amount as in his judgment should be necessary for the support of testator's widow and children, are personal to, and discretionary with, the executor; and on his death they do not vest in the administrator c. t. a., though Code N. C. § 2168, provides that an administrator c. t. a. "has all the rights and powers, and is subject to the same duties, as if he had been named executor in the will."

2. But a bequest of $6,000 in trust to the executor, to be invested in United States bonds, or deposited in "some safe bank of this state, as in his judgment he may think best," the interest to be applied to the education of testator's children, passes to the administrator c. t. a., as the discretion vested in the executor is only as to the manner of safe-keeping,-an incidental matter, that does not extinguish the trust at his death.

3. Under Code N. C. § 1493, which expressly provides that a power to sell land conferred on the executor by the will shall pass to the administrator c. t. a., and section 2168, which confers on the administrator c. t. a., "all the rights and powers" given the executor by the will, the administrator c. t. a. may exercise the general powers of an executor in settling the estate, including that of selling testator's land.

4. In an action against the administrator c. t. a. by testator's widow for money paid out by her for the tuition of testator's children, she should allege that she did so at the request of either the executor or administrator c. t. a.; the will directing the executor to apply the income of $6,000 to the education of testator's children.

Appeal from superior court, Lenoir county; GRAVES, Judge.

Action by Julia N. Creech, widow of R. G. Creech, deceased, against J. W. Grainger, his administrator d. b. n. c. t. a. Her first cause of action was for her distributive share of the estate of the deceased, and for her yearly allowance. She alleged that, at the time of his death, testator's family consisted of herself and their four minor children, and that T. E. Hooker had been appointed executor by testator's will. For her second cause of action, she alleged: "(1) That the aforementioned children have resided with the plaintiff continually since the death of their father, and that they have been boarded, clothed, and supported by the plaintiff at her own cost and expense since January 17, 1885, and with the expectation of being paid therefor; (2) that the board, support, and clothing of the said children is reasonably worth $100 per annum for each one; (3) that the said R. G. Creech, by his last will and testament, which said will is hereto annexed, and made a part of this complaint, directed his executor to set apart and invest in United States bonds, or deposit in bank, the sum of $6,000, and from the income thereof to pay for the maintenance and education of his said children, which said sum was so deposited by said Hooker in the National Bank of Wilson, upon certificate of deposit, at 6 per cent. interest, payable to said Hooker as executor; (4) that said Travis E. Hooker, executor, died on the 16th day of March, 1887, without having fully administered the estate, and without having fully performed

the trusts imposed upon said executor in said will, and that the defendant, J. W. Grainger, was on the 23d day of February, 1888, duly appointed and qualified as administratord. b. n. c. t. a. of the estate of said R. G. Creech, deceased, and as such administrator came into possession of the said estate, including said certificate of deposit, with the accumulated interest thereon; (5) that said J. W. Grainger, administrator d. b. n. c. t. a., has in hand $10,286.70, and interest due on certificate and notes, of which amount the sum of over $2,500 is the accumulated interest upon the sum of $6,000, set apart as a fund, in the will of said Creech, for the support and education of said children. For a third cause of action, plaintiff alleges: (1) That plaintiff has sent to school the said children for one term, and is liable for their tuition to the sum of $37.50, which is a reasonable charge. Defendant's demurrer to the second and third causes of action was

overruled, and from a judgment in plaintiff's favor he appeals. The second, third, and fourth clauses of the will are as follows: "Item. It is my will and desire that my mercantile business, harness shop, blacksmith shop, and carriage shop be continued as long as, in the judgment of my executor, it shall be profitable, and such of the profits resulting therefrom as may, in the judgment of my s'd executor, be actually necessary for the support of my wife and children be paid over to my beloved wife, Julia Creech. Item. I give and bequeath to my children the sum of six thousand dollars, to be paid to my executor, and by him invested in United States bonds, or deposited in some safe bank of this state, as in his judgment he may think best, the interest accruing thereon to be drawn annually, and applied to the education of my said children; and when they shall severally arrive at the age of twenty-one years, it is my will and desire, and I so direct my executor, to pay them their proportional part of the said six thousand dollars. Item. I give and devise to my beloved wife, Julia Creech, all the real estate, wheresoever situated, including my dwelling-house, my store-houses, and all houses and lots I now own in the town of Hookerton, together with all my personal property of every description, not herein otherwise disposed of, to have and to hold to her, the s'd Julia Creech, for and during her natural life. It is, however, my will and desire, that my executor shall have entire control and management of all my business, and to continue or discontinue all or any department of it, at any time he may find it not yielding a reasonable profit, and out of the profits resulting from s'd business pay to my wife, from time to time, such amounts as he may consider actually necessary for her support, and the support of my children.

99

N. J. Rouse, for appellant. Loftin & Rountree, for appellee.

CLARK, J. The demurrer to the second cause of action should have been sustained. This cause of action is based upon the allegation that by the will the interest on the sum of $6,000 was devoted to the maintenance and education of the children. A

reference to the will, item 3, as set out in the record, shows that such interest was devoted to the education of the children only. This cause of action seeks to apply it to the maintenance of the children, and could not have been maintained against the executor himself, if living. Clauses 2 and 4 of the will appropriate the profits of the business, to be continued by the executor in his discretion, to the maintenance of the children. If the pleadings as to this cause of action were reformed so as to allege that so much of the fund in the hands of the administrator as is not the aforesaid $6,000, and accumulated in terest thereon, arose from the said profits, and that the executor agreed upon, or promised compensation for, the maintenance of the children, or refused to exercise his discretion in regard to the amount, it may be that then the plaintiff would have a cause of action to have compensation awarded her out of such accumulated profits. But it is not necessary that we decide upon the point, as it is not now before us.

The demurrer upon the third cause of action should also have been sustained. It is not clearly made to appear whether the liability of plaintiff for the $37.50 for tuition was incurred before or since the death of the executor. If before his death, and plaintiff incurred it at his instance, or by his authority, a good cause of action as to this would be shown; but the burden to clearly allege and to prove the state of facts entitling her to recover is on the plaintiff. In fact, however, it was conceded in the argument that this liability was incurred since the executor's death.

Putting out of view the absence of any allegation that plaintiff incurred the liability at the instance or by authority of defendant, which defect is fatal to plaintiff's claim, we will consider, as the parties desire it, the question whether the defendant, an administrator de bonis non, cum testamento annexo, had power to execute the trusts expressed in the will. The statute (Code, § 2168) is as follows: "In all cases where letters of administration with the will annexed are granted, the will of the testator must be observed and performed by the administrator with the will annexed both in respect to real and personal property; and an administrator with the will annexed has all the rights and powers, and is subject to the same duties, as if he had been named executor in the will." As to powers conferred upon the executor by the second and fourth items of the will to continue the business of the testator as long as, in the executor's judgment, it shall be profitable, and to pay out of the profits such amounts as in his judgment should be necessary for the support of testator's widow and children, they were personal to, and · discretionary with, the executor, and became extinct at his death. They could not be judicially prolonged, and vested either in the administrator c. t. a., nor in a substituted trustee. Young v. Young, 97 N. C. 132, 2 S. E. Rep. 78; Lewin, Trusts, 435.

As to all the other powers and duties conferred by the will, including that of holding the $6,000, and applying the annual interest to the education of the chil

dren, the administrator with the will annexed becomes a trustee for any trusts declared in the will which could pass and be transferred to any one, as much as if he had been named executor. Jones v. Jones, 2 Dev. Eq. 387. In the present case, there is no trust which can survive and pass to the administrator under the statute except that imposed in regard to the $6,000. The discretion given to the executor as to that was only as to the manner of safe-keeping, an incidental matter, which does not extinguish it at his death. The general duties of the executor in regard to settling the estate pass, of course, to the administrator. On such settlement, he should pay over to the distributees or their guardian the fund remaining after payments of debts and charges of administration, except the $6,000 and interest thereon, which trust he should execute under the will.

We are aware that there are decisions in New York and some other states that only such powers pass to the administrator as belonged to the executor virtute officii, and that the other trusts conferred by the will, which are not in the scope of the common-law duties of an executor, do no t pass to the administrator, but that a trustee must be appointed to execute them. A scrutiny of these cases shows that they all enforce the idea that, as an executor at common law had no control over realty, a power conferred on him by the will to sell real estate does not pass to the administrator. Our statute, however, (Code § 1493,) expressly provides that it shall; and the reasoning in those cases has no application here, and we prefer to follow our own precedent. Jones v. Jones, supra. As the appointment of an administrator and of a trustee would be by the same court, and both are required to give bond, and to make returns, and in all respects are subject to the same supervision, there seems no good reason to require the appointment of a trustee when the Code, §§ 1493, 2168, by a fair and reasonable construction, indicates clearly the intention to devolve upon the administrator c. t. a. "all the rights and powers" conferred on the executor by the will. It would add to the expense, but hardly to efficiency, in executing the will, to have two officers instead of one. The same general legislative intent is shown by chapter 147, Acts 1887, which provides that the executor or administrator of a mortgagee, in a mortgage containing a power of sale, may sell under the power, without the necessity of the court appointing a new trustee.

The demurrers to both causes of action should have been sustained, with leave to plaintiff to amend the complaint if desired. The cause is remanded, that it may be so ordered. Error

STATE V. POOL. (Supreme Court of North Carolina. March 24, 1890.)

HIGHWAYS-FAILURE TO WORK-INDICTMENT.

1. Code N. C. § 2019, requires the overseer of a public road to give notice to the hands required to work on his road at least three days before the day named for working, and to state the hour and designate the place for the meeting of the hands, and provides that any person summoned to work

who shall pay to the overseer the sum of one dollar shall be relieved from working on the road for one day. Section 2020 provides that any person liable to work on the road who shall fail to attend and work when summoned so to do, unless he shall have paid the one dollar, shall be guilty of a misdemeanor. Held, that a warrant for a failure to work, which failed to state that the offense was committed in defendant's county, or that defendant was notified to attend at a time and place designated, or to describe the road with reasonable certainty, is fatally defective.

2. An indictment for failing to work the road under Code N. C. § 2020, which provides that any person liable to work on the road who shall fail to attend and work when summoned to do so, unless he shall have paid the one dollar in lieu of such service for one day, as provided in section 2019, must negative the payment of the one dollar in discharge of defendant's liability to work, as the exceptive provision is in and part of the clause of the statute creating the offense.

Appeal from superior court, Moore county; BYNUM, Judge.

Code N. C. § 2019, requires the overseer of a public road to give notice to the hands required to work on his road at least three days before the day named for the work, and to state the hour and place for the meeting of the hands, and provides that any person summoned to work who shall pay to the overseer the sum of one dollar shall be relieved from working on the road one day; and section 2020 makes the failure to work, when summoned to do so, a misdemeanor.

The Attorney General, for the State.

MERRIMON, C. J. The defendant was held to answer criminally before a justice of the peace for having failed to do service on a public road. The affidavit and the state warrant founded upon it, taken together, charge that the overseer of the road mentioned summoned the defendant, "for more than three days before 18th day of September, 1889, to appear and work the Keyser public road on the 18th day of September, 1889, at 8 o'clock A. M., and bring shovel, and that the said Pool [the defendant] unlawfully and willfully failed to come himself or send a hand, contrary to,"

etc. Upon the plea of not guilty, there was a verdict of guilty. The defendant moved in arrest of judgment, upon the ground that the warrant failed to charge sufficiently that he "was assigned to said road, and was liable to work on said road.' The court denied the motion, gave judgment against the defendant, and he appealed.

Criminal and other proceedings before justices of the peace should be upheld when they embody the essential substance of the matter to which they relate, however informal and disorderly they may be; and, when they are defective in form or substance, courts having authority to do so should freely, but cautiously, exercise their large powers to amend the same, if sufficient facts appear by which to amend. Fair opportunity should be allowed the defendant to complete his defense. Code, § 908; State v. Smith, 98 N. C. 747, 4 S. E. Rep. 517; Same v. Same, 103 N. C. 410, 9 S. E. Rep. 200. But, especially in actions charging criminal offenses, the offense must be charged with sufficient certainty and fullness to enable the court to see that

When

an offense, as intended, is charged. the charge is defective in form or substance, as indicated above, if the evidence satisfies the court that the offense was probably committed, it should at once, in its discretion, allow or direct proper amendments to be made, giving the defendant reasonable opportunity to make his defense. The charge in the warrant in this case is fatally defective in substance. It is not charged that the offense was committed in the county of Moore, nor the prosecutor was overseer of the road, and had authority as such; nor is the road described with reasonable certainty as a public road; nor is it charged, except very imperfectly, that the defendant was assigned and liable to do duty on the road; nor that the defendant was notified, as required by the statute, (Code, § 2019,) to attend at a place designated at the time specified to do service; nor is there any clause in the charge negativing the payment of one dollar in discharge of the defendant's liability to do labor on the day specified. Such defects might have been helped or cured by proper amendments, but they were not asked for or made. It is true the motion of defendant in arrest of judgment was based on the ground that it was not charged that he was assigned to duty, etc., and the court allowed an amendment, probably in the last-named respect; but, so far as appears, no amendment was in fact made, nor was any amendment asked for or allowed in other material respects indicated. The time when a person is required to do service on public roads is a material part of the notice. It is made so by the express provision of the statute prescribing what the notice shall be.

And so, also, it is necessary in the charge to negative the payment of one dollar by the defendant in the discharge of his liability to do service on the day specified in the notice, because the statute creating the offense (Code, § 2020) prescribes that the failure of the party charged to attend and work shall be an offense, "unless he shall have paid the one dollar as aforesaid, "etc. The exceptive provision is in and part of the clause of the statute creating the offense, and in such cases it is necessary to negative such payment. State v. Norman, 2 Dev. 222; State v. Tomlinson, 77 N. C. 528; State v. Narrows Island Club, 100 N. C. 477, 5 S. E. Rep. 411; Archb. Crim. Pl. 25. There is error. The judgment must be set aside, and judgment arrested, and the action dismissed, unless the court shall allow the warrant to be properly amended, in which case there will be a new trial. To that end let this opinion be certified to the superior court. It is so ordered.

ALLRED V. BURNS. (Supreme Court of North Carolina. March 24, 1890.)

CONTRACTS-TIME OF PAYMENT.

Defendant, having sold to a third person an interest in property which he had formerly leased to plaintiff, agreed in writing to pay plaintiff for the surrender of his lease a certain sum on the making of the third payment to defendant by the purchaser on a certain day. Held, that the words

"upon the making of the third payment" by the purchaser to defendant on the day named, did not imply that defendant should pay plaintiff only on condition that the purchaser should pay him the third installment of the price of the property.

Appeal from superior court, Moore county; J. H. MERRIMON, Judge.

W.J. Adams, for appellant. J. C. Black, for appellee.

66

MERRIMON, C. J. The plaintiff brought this action to recover the sum of $250, which he alleges he placed in the hands of the defendant to be paid and applied to a purpose specified, and which he failed to so apply, but used for his own purposes, and also the other sum of $1,000, which the defendant obliged himself to pay to the plaintiff by their mutual agreement, whereof the following is a copy: Whereas, John F. Burns and wife, by an instrument in writing, dated March 25th, 1881, leased to C. L. Allred, for the period of ten years, an interest in what is known as the Moody Hill Gold Mine,' including about ten acres of land on the waters of Folly Branch, in Moore County, North Carolina; and whereas, said Burns and wife have sold said mine and land to Robert H. Duncan, and conveyed the same to him by deed dated September 22d, 1882: Now, in consideration of the premises, and the sum of twenty-one hundred dollars in cash paid, the receipt of which is hereby acknowledged, and the agreement of the said Burns to pay the said Allred the following additional payments, the said Allred and Burns agree as follows: (1) That said Allred hereby agrees, and hereby does surrender, cancel, and deliver up the said lease, and all his right and claim in and to said leased premises. (2) That the said Burns hereby agrees to pay the said Allred the sum of one thousand dolars upon the making of the third payment to the said Burns by the said Duncan on the 22d day of September, 1885. Also, the said Burns agrees to pay the said Allred an additional five hundred dollars upon the making of the seventh payment to the said Burns by the said Duncan on the 22d day of September, 1889. In testimony whereof, the said parties hereunto set their hands and seals the 25th day of September, 1882. J. F. BURNS. [Seal.] C. L. ALLRED. [Seal.] In presence of ROBERT H. DUNCAN."

On the trial, the plaintiff testified "that he left in the hands of the defendant $250, part of the $2,100 set forth in the contract, to be paid to one E. N. Moffitt, as plaintiff's portion of a joint liability of plaintiff and defendant. This amount was to have been paid in two weeks. Defendant had repeatedly informed him, since the commencement of this action, that he had never paid this amount to Moffitt, or to any one for him. Defendant excepts. The plaintiff further testified that Moffitt had never agreed to release him from said liability, but that the defendant told Moffitt, in plaintiff's presence, that he would assume plaintiff's liability to said Moffitt; had never demanded of plaintiff his portion of said liability. Moffitt died January, 1886. He further claimed that no part of the $1,000 which he claimed was due by said contract on the 22d day of

| September, 1885, had ever been paid to him, or to any one for him; that he did not think that Duncan had ever made the third payment, but he did not know. Defendant excepts. The defendant introduced no evidence. The following issues were submitted to the jury: Is the defendant indebted to the plaintiff? If so, in what amount? The defendant requested the presiding judge to instruct the jury that the plaintiff was not entitled to recover judgment for $1,000 until he had shown affirmatively that Duncan had made the third payment to the defendant. Refused. Defendant excepts. The judge instructed the jury that there was no evidence that Moffitt had released the plaintiff from his portion of said joint liability, and that if they believed the evidence the plaintiff was entitled to recover the full amount demanded in his complaint. Verdict and judgment for the plaintiff. Appeal by the defendant."

The first and second exceptions are too indefinite to be entertained. They do not specify, as they should do, to have force, some sufficient ground of objection to the evidence to which it seems they were, respectively, intended to have reference. far as appears, the evidence objected to was pertinent, and competent to prove material facts.

So

We think the court below properly interpreted the agreement in question in respect to the sum of $1,000 to be paid to the plaintiff by the defendant. It appears from its face that the defendant sold his lease of the mine and the land mentioned to Duncan for the price of $3,500. Of this sum, $2,100 was paid at once. The balance was to be paid in two installments, coming due at different times,-one, that in question, of $1,000, to be paid "upon the making of the third payment to said Burns by the said Duncan on the 22d day of September, 1885. " The nature of the transaction constituting the basis of the agreement, and the terms of the latter, give point and meaning to the words just quoted. It was expected that Duncan would certainly pay to the defendant a third installment of the purchase money for the mine at the time specified, and the latter intended to devote $1,000 of the money so to be received by him to the payment of the sum of money he so agreed to pay to the plaintiff at that time. The agreement was not simply to pay the money at any time "upon the making of the third payment to the said Burns by the said Duncan," but upon the making of such payment, "on the 22d day of September, 1885." The latter words fixed the time of payment to the plaintiff,-the time his debt should be due. The purpose of the other words was to suggest and assure the plaintiff that the defendant would at that time have a particular fund that he could and would devote to the payment of the plaintiff's debt. There is nothing in the nature of the agreement, nor are there terms used in it, which imply that the defendant would pay the plaintiff the sum of money specified in question on condition or in the event, and only in the event, Duncan should pay to the defendant the third installment of the price of the mine; nor are there words which, fairly

interpreted, imply that the sum of money should be due at some indefinite period after the time so specified. Indeed, it seems to us that no other interpretation could be given the agreement, in the respect in question, other than that we have given it, that would make it reasonable and practicable. Judgment affirmed.

PROCTOR V. PROCTOR.

(Supreme Court of North Carolina. March 24, 1890.)

EXECUTORS AND ADMINISTRATORS LIMITATION OF ACTIONS.

1. The heir cannot plead the statute of limitations against a debt on which judgment has been recovered against the administrator, unless the judgment was obtained through fraud and collusion; and, where the findings of the court negative the allegation that the judgment was thus obtained, the heir is bound by the judgment.

2. An agreement between an administrator, who is also one of the heirs of his intestate, and the other heirs, by which the administrator is to live on the land, and receive the rents and profits, in consideration of his paying the debts of the intestate, and supporting the widow, is no defense to a proceeding by the administrator to subject the lands of his intestate to the payment of debts, as the creditors are entitled to have their debts paid without reference to any agreement between the heirs in regard to their payment.

3. Where the heirs, in their answer to a proceeding by an administrator to obtain a license to sell land for the payment of his intestate's debts, set up the plea that the action was not brought within the time prescribed by law for the bringing of such actions, and the court below fails to consider the merits of the plea, and there is some evidence of facts necessary to sustain it, a new trial will be granted, as the plea raises an important question under the statute, and the action cannot be disposed of until its whole merits, as presented by the pleadings, are considered and determined.

Appeal from superior court, Edgecombe county; GRAVES, Judge.

G. M. T. Fountain, for appellant. J. L. Bridgers, for appellee.

MERRIMON, C. J. It appears that L. D. Proctor died intestate in 1878, and that on the 1st of May, 1878, the plaintiff was appointed administrator of his estate, and he brings this special proceeding to obtain a license to sell lands of his intestate to make assets to pay the debts of the latter. The defendant, (appellant,) one of the heirs at law of the intestate, in his answer to the petition, denies that the personal assets that have come, and ought to have come, into the hands of the plaintiff, are insufficient to pay the debts of his intestate; and he pleads specially “that if there is any indebtedness outstanding against the estate of plaintiff's intestate, that the same is barred by the statute of limitations, [Code, § 153, par. 2, §§ 155, 1427,] and the said statute of limitations is hereby pleaded against the collection of said claim.." It seems, also, that the appellant intended to plead, and was treated as pleading, perhaps, be fore the referee, any statute of limitation applicable to such debts, whether notes, single bonds, or judgments, as were preferred against the administrator, whether the latter pleaded such statute or not, and as to debts admitted by him, as to which he did not plead such statute, although he might have done so successfully, but al

lowed judgments to go against him. One debt presented against the administrator was the single bond of his intestate made to P. G. Foster for $78.62, dated and due the 1st of September, 1855, and there were other like bonds, one made in 1870. The plaintiff did not plead the statute of limitation or payment against any of these debts, but suffered judgment to go against him in the court of a justice of the peace. In the course of the special proceeding there was an order of reference, directing an account to be taken and stated; and before the referee the appellant insisted that the debts above referred to were barred by the statute of limitations, or under the statute of presumption they were presumed to be paid. One of the judgments referred to above was given after this special proceeding began, and after the appellant had filed his answer to the petition. The referee took evidence, found the facts and law, stated an account, and made his report of the whole to the court. The appellant filed numerous exceptions to the findings of fact and law by the referee, which the court overruled, and gave judgment in favor of the plaintiff, from which the complaining defendant appealed to this court.

It is expressly decided that the heir may plead the statute of limitations against a debt of the ancestor, not reduced to judgment against the administrator, in a special proceeding of the latter to obtain a license to sell the descended lands to make assets to pay debts of the intestate. Bevers v. Park, 88 N. C. 456. In that case it was left an open question "how far the heir may be bound by a valid subsisting judgment against the administrator, or to what extent he may contest the validity of the demand upon which it is founded. The question thus left open was considered and settled in Speer v. James, 94 N. C. 417. In this case, Bevers v. Park, supra, is referred to and commented upon, not disapprovingly; but the court declined to enlarge its scope so as to allow the heir to plead the statute of limitation against a debt upon which the administrator had in good faith allowed a judgment to go against him. It is there held that the heir is bound by the judgment against the administrator, unless he can show that it was obtained by collusion and fraud, and he is barred by it from setting up any statutory limitation or other matter which might have been pleaded by the administrator as a bar to the action against him. The findings of fact by the court negative the allegation of the appellant in his answer that the judgments referred to were obtained by collusive fraud. He could not, therefore, avail himself of the statute of limitations that the plaintiff might have pleaded against the notes upon which such judgments were founded. It appears that the note on which judgment was given against the plaintiff after this special proceeding began, was not barred by the statute. Hence it is not necessary to inquire whether the appellant's plea of the statute of limitation as to it had reference to the beginning of the proceeding, or to the filing of his answer, or the time of taking it into the account by the referee. Such inquiry is not material here. The court,