Snipes v. . Monds

Supreme Court of North Carolina

Snipes v. . Monds

129 S.E. 413, 190 N.C. 190, 1925 N.C. LEXIS 41

CourtSupreme Court of North Carolina

DecidedSeptember 30, 1925

StatusPublished

Cited by21 cases

This text of 129 S.E. 413 (Snipes v. . Monds) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Snipes v. . Monds, 129 S.E. 413, 190 N.C. 190, 1925 N.C. LEXIS 41 (N.C. 1925).

Pincite

Opinion

Varser, J.

Even after answering in the trial court, or in this Court, a defendant may demur ore tenus, or the Court may raise the question ex mero motu that the complaint does not state a cause of action. Garrison v. Williams, 150 N. C., 675. Construing the complaint liberally in favor of the plaintiff (Horney v. Mills, 189 N. C., 724, 728), to the end that it must be upheld unless wholly insufficient (Sexton v. Farrington, 185 N. C., 339; Blackmore v. Winders, 144 N. C., 212; Bank v. Duffy, 156 N. C., 83; Pridgen v. Pridgen, ante, 102), the demurrer must be sustained.

An executor cannot, by any contract of his, fasten upon the estate of his testator liability created by him, and arising -wholly out of matters occurring after the death of the testator. Banking Co. v. Morehead, 116 N. C., 410; McLean v. McLean, 88 N. C., 394; Tyson v. Walston, 83 N. C., 90; Kerchner v. McRae, 80 N. C., 219; Beaty v. Gingles, 53 N. C., 302; Hailey v. Wheeler, 49 N. C., 159; Devane v. Royal, 52 N. C., 426. This is true even when the creditor knows that the money loaned is to be used in payment of the debts of the testator (Banking Co. v. Morehead, supra), or for attorneys’ fees for services rendered the executor in the discharge of his trust. Lindsay v. Darden, 124 N. C., 307. Such contracts always support an action by the creditor against the executor personally. When such expenses as sued for in this action,, or *192 fees of counsel, are properly incurred, and paid by tbe executor,'then be may, if tbe disbursement be proper, be allowed these in bis settlement of tbe estate. Tbe probate court will then determine whether such are reasonable and just, and make such allowances as may be proper.

Tbe debt sued on is not a debt of tbe estate of T. L. Fitzgerald, and no cause of action is stated in tbe complaint. Lindsay v. Darden, supra, 11 R. C. L., 165; Banking Company v. Morehead, supra; Whisnant v. Price, 175 N. C., 611, 613; Craven v. Munger, 170 N. C., 424; Alexander v. Alexander, 120 N. C., 472; Kessler v. Hall, 64 N. C., 60; Devane v. Royal, 52 N. C., 426.

It may be well to note that, under chapter 86, Public Laws 1925, executors or administrators may renew the obligations of tbe decedent without incurring personal liability.

Tbe learned judge below was clearly right, and tbe judgment appealed from is

Affirmed.

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Varser, J.

Even after answering in the trial court, or in this Court, a defendant may demur ore tenus, or the Court may raise the question ex mero motu that the complaint does not state a cause of action. Garrison v. Williams, 150 N. C., 675. Construing the complaint liberally in favor of the plaintiff (Horney v. Mills, 189 N. C., 724, 728), to the end that it must be upheld unless wholly insufficient (Sexton v. Farrington, 185 N. C., 339; Blackmore v. Winders, 144 N. C., 212; Bank v. Duffy, 156 N. C., 83; Pridgen v. Pridgen, ante, 102), the demurrer must be sustained.

An executor cannot, by any contract of his, fasten upon the estate of his testator liability created by him, and arising -wholly out of matters occurring after the death of the testator. Banking Co. v. Morehead, 116 N. C., 410; McLean v. McLean, 88 N. C., 394; Tyson v. Walston, 83 N. C., 90; Kerchner v. McRae, 80 N. C., 219; Beaty v. Gingles, 53 N. C., 302; Hailey v. Wheeler, 49 N. C., 159; Devane v. Royal, 52 N. C., 426. This is true even when the creditor knows that the money loaned is to be used in payment of the debts of the testator (Banking Co. v. Morehead, supra), or for attorneys’ fees for services rendered the executor in the discharge of his trust. Lindsay v. Darden, 124 N. C., 307. Such contracts always support an action by the creditor against the executor personally. When such expenses as sued for in this action,, or *192 fees of counsel, are properly incurred, and paid by tbe executor,'then be may, if tbe disbursement be proper, be allowed these in bis settlement of tbe estate. Tbe probate court will then determine whether such are reasonable and just, and make such allowances as may be proper.

Tbe debt sued on is not a debt of tbe estate of T. L. Fitzgerald, and no cause of action is stated in tbe complaint. Lindsay v. Darden, supra, 11 R. C. L., 165; Banking Company v. Morehead, supra; Whisnant v. Price, 175 N. C., 611, 613; Craven v. Munger, 170 N. C., 424; Alexander v. Alexander, 120 N. C., 472; Kessler v. Hall, 64 N. C., 60; Devane v. Royal, 52 N. C., 426.

It may be well to note that, under chapter 86, Public Laws 1925, executors or administrators may renew the obligations of tbe decedent without incurring personal liability.

Tbe learned judge below was clearly right, and tbe judgment appealed from is

Affirmed.

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Bluebook (online)

129 S.E. 413, 190 N.C. 190, 1925 N.C. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snipes-v-monds-nc-1925.

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