Norwood v. O'Neal

Full title: M. V. NORWOOD v. C. G. O'NEAL

Court: Supreme Court of North Carolina

Date published: Feb 1, 1893

16 S.E. 759 (N.C. 1893)

112 N.C. 127

Opinion

(February Term, 1893.)

Distributive Share — Wrongful Payment by Administrator — Action for Money Had and Received.

Where money was paid by an administrator to one supposed to be entitled as a distributee "in full of his distributive share" and on his promise to refund "should any lawful claim come against the estate," no cause of action accrued to those who were rightly entitled, and the money can only be recovered by the administrator to whom the promise was made.

ACTION to recover money had and received to use of plaintiffs, heard before Connor, J., at February Term, 1892, of WAKE, on appeal from the court of a justice of the peace. From the judgment defendant appealed.

Geo. H. Snow for plaintiff.

W. N. Jones for defendant.

BURWELL, 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 27 December, 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 (128) 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.