Norwood v. . O'Neal

16 S.E. 759, 112 N.C. 127

• Court: Supreme Court of North Carolina
• Decided: February 5, 1893
• Status: Published

Opinion

B urw ell, J.:

It appears from the case on appeal that the administrator of one Elizabeth Perry paid to the defendant a certain sum of money, on December, 27, 1867, thinking that he was entitled to receive it as a distributee of that estate. His wife, a daughter of Elizabeth Perry, had died before the death of her mother, and the plaintiffs are his children.

When the defendant received this money he gave the administrator a receipt for the same “in full of his interest in said estate,” in which he stipulated that “should any lawful claim come against said estate,” he would “refund his proportionate part of said lawful claim.” ■ The promise of the defendant was to the administrator of Elizabeth Perry, and no one but him or his successor can enforce that promise. The money was not received by defendant under any agreement, express or implied, that he would hold it for the plaintiffs. On the contrary, it was received expressly for his own use. And, whatever may be the rights of the plaintiffs against the administrator who has failed to pay to them the money they may be entitled to from their grandmother’s estate, it seems very clear that they have no cause of action against the defendant, and his Honor should have charged the jury, as requested, that upon the evidence and the admissions the plaintiffs could not recover. Error.