Felton v. . Felton

195 S.E. 533, 213 N.C. 194, 1938 N.C. LEXIS 40

• Court: Supreme Court of North Carolina
• Decided: March 2, 1938
• Status: Published

Opinion

Winborne, J.

Four questions are presented on this appeal:

1. Can distributees of the estate of the intestate, whose debts are paid, maintain action for waste or devastavit?

2. Has an administratrix the right and authority to sell a note, an asset of the estate, at private sale made in good faith and for fair value?

3. Does purchaser of a note, an asset of the estate, at private sale from the administratrix, for fair value and without notice of bad faith, if any, of the administratrix in making sale, obtain a good title ?

4. Did the court below err in rendering judgment on the pleadings?

Careful consideration of the record leads to the conclusion that each question must be'answered in the affirmative.

1. Until the debts have been paid or the assets of the estate exhausted the estate is not settled, and the duties and obligations of the administratrix continue. C. S., 105. Creech v. Wilder, 212 N. C., 162, 193 S. E., 281; Trust Co. v. McDearman, ante, 141. Until the settlement and distribution of an estate, the administration is incomplete. Taylor v. Brooks, 20 N. C., 273. The appointment of an administrator de bonis non is proper only where a vacancy occurs before full administration and distribution of the estate. 24 C. J., 1143. While the administratrix lives and the administration is incomplete, the distributees can maintain an action for alleged waste or devastavit committed by her. University v. Hughes, 90 N. C., 537, at 541; Merrill v. Merrill, 92 N. C., 657, at 662.

2-3. In accordance with a long line of decisions of the Court, administrators, having the legal title to the personal assets of their intestate’s estate, may sell or pledge them, or may discount notes of the estate, if the exigencies of the estate make it advisable for them to do so. The parties dealing with them will get a good title and will be protected, provided the transaction be fair and honest. Tyrrell v. Morris, 21 N. C., 559; Gray v. Armistead, 41 N. C., 74; Bradshaw v. Simpson, 41 N. C., 243; Wilson v. Doster, 42 N. C., 231; Polks v. Robinson, 42 N. C., 235; Latham v. Moore, 59 N. C., 167; Hendrick v. Gidney, 114 N. C., 543, 19 S. E., 598; Cox v. Bank, 119 N. C., 302, 26 S. E., 22.

In Cox v. Bank, 119 N. C., 302, the Court said: “Executors have the right to sell or pledge notes of hand as well as chattels, and the sale is no breach of duty, for the purposes of the estate may require such sales, and the purchaser is not held liable for any misapplication of the pro ceeds unless collusion between the two appears, as if the sale was to pay an individual debt of the purchaser.”

Private sale of choses in action by executor or administrator, if made in good faith, is valid. Wynns v. Alexander, 22 N. C., 58; Cannon v. Jenkins, 16 N. C., 427; Gray v. Armistead, supra; Dixon v. Crawley, 112 N. C., 629, 17 S. E., 158; Odell v. House, 144 N. C., 647, 57 S. E., 395.

This Court has spoken in several cases to the question of authority of an administrator to sell property at private sale when there is legislative authority to sell upon order of the court.

In Tyrrell v. Morris, supra, it is said: “It cannot be pretended that a sale by an executor is invalid, either in law or equity, because not made at public auction nor under an order of the court specially granted for that purpose. The most that can be required from the purchaser under such circumstances is to repel the presumption that he may have bought at an undervalue.”

In Wynns v. Alexander, supra, Daniel, J., stated: “The executor might, before the passage of the act, have sold bona fide the goods and chattels of the testator or intestate. The legal title was in him, and an honest purchaser from him would always have acquired a good title. The common law on this subject is not repealed by this act. The statute is only directory, which, however, it would always be well to follow, for, if-the executor or administrator fails to obtain as much at private sale as would have been got at public vendue, he or they would have been bound to make good the deficiency out of their own pockets.”

In Odell v. House, supra, Connor, J., said: “We assume that his Honor based his opinion upon the provisions of section 67 of The Code (now C. S., 73), permitting executors and administrators to apply to the clerk for an order to sell insolvent evidences of debt and prescribing the manner of making the sale. This provision is first found in our statutes in Laws 1868-69. Prior thereto there was no statute empowering a personal representative to dispose of insolvent choses in action; he was compelled, upon his final account, to return them into court. This statute was enacted to provide a way for the administrator to relieve himself of liability and at the same time realize something from choses in action which, by reason of homestead and exemption laws, were not collectible, but which might, have some prospective value. For many years the statute made it the duty of the administrator to sell all personal property at public sale, after advertisement, but the courts always held that the administrator could sell and pass the title to the personal property of his intestate.” Then Connor, J., continues with the above quotation from opinion of Daniel, J., in Wynns v. Alexander, supra.

Plaintiffs rely upon C. S., 69, and contend that an administrator is without power to make private sale of any personal property, of whatever character, unless an order of the court be obtained as therein provided. Reference to that statute reveals the expression “. . . may . . . obtain an order to sell . . .” The word “may” as used in ■statutes in its ordinary sense is permissive and not mandatory. Rector v. Rector, 186 N. C., 618, 120 S. E., 195. Therefore, the statute is permissive, and not mandatory. It is manifest that it was enacted for the protection of administrators in making private sales, a course which an administrator may, but is not required to pursue.

4. In the light of what has been said hereinabove, the answer of the defendants J. R. Stokes and Alphonso Reed raises issues of fact which must be submitted to the jury.

The judgment below is reversed and the cause is remanded for further proceedings in accordance with this opinion.

Reversed.

Stacy, C. J., took no part in the consideration or decision of this case.