41 N.C. 368 | N.C. | 1849
John Alston died in 1843, leaving a last will; and the executors named having renounced, the defendant Batchelor was appointed administrator, with the will annexed. The will contains this clause: "I give and bequeath to my beloved wife, Dolly Alston, after paying my just debts, all of my property, real, personal, and perishable, to be hers in fee simple, so that she can have the right of giving it to our six children (naming them) as she may think best." The estate was a good deal in (369 debt, and the plaintiff Dolly believing, as she alleges, that she was entitled to the beneficial interest in the whole of the surplus, and with a view to prevent a sale of the negroes, took up a note, which one Harvey held against the testator for $490, by substituting her own note, with the other two plaintiffs as her sureties. Harvey afterwards compelled her and her sureties to pay the amount of the note; and the prayer of the bill is that the defendant Batchelor may be decreed, out of the assets in his hands, to refund to them the amount so paid. There is no allegation that she substituted her note for the note held by Harvey at the instance of the defendant Batchelor. The bill was afterwards amended by making the six children of the testator parties defendants; and the plaintiffs by their amended bill insist that, whether the surplus, by a proper construction of the will, is to be paid over to the said Dolly for her own use, or in trust for her children, the plaintiffs are entitled to have the amounts paid by them to Harvey repaid to them by the said Batchelor out of the assets in his hands.
The defendant Batchelor admits that the testator owed the debt to Harvey which has been paid by the plaintiffs; but he says they acted officiously and not only without his consent, but against his advice, and he denies their right to call upon him for the sum so paid by them. He further insists that after his appointment as administrator with the will annexed he duly advertised for all creditors to present their claims for payment, and that the debt which the plaintiffs seek to recover is barred by the statute of limitations. The other defendants, who are the children of the testator, insist that the payment of the debt to Harvey by the said Dolly and her sureties, and the substitution of the note, were made without their knowledge, privity or consent, and refused to give their consent that the amount shall be repaid by the administrator. *263
Before the present bill was filed the plaintiff Dolly had filed a (370) bill against the defendant Batchelor for an account. The bill is still pending, and there is a decree for an account, for which reason the defendant Batchelor objects to a decree for an account in the present bill. It is conceded that the plaintiff Dolly is entitled to whatever surplus may remain in the hands of the administrator, and for that she will have a decree in the bill filed by her for an account, which is still pending. Whether, after it is received by her, she will hold it for her own use, or in trust to divide it among the six children of the testator, will be a very interesting question; but it is one about which we do not feel at liberty in this case to express an opinion. It is a question between the plaintiff Dolly and the defendants, her children, with which the other plaintiffs in this case and the defendant Batchelor have no concern, and the present bill was not filed with a view or in a manner to present it for our decision.
The plaintiffs are not entitled to the relief sought for by this bill. There is no authority to sustain the position that a legatee may pay off the debts of the testator, and then file a bill for repayment. It is the duty of the executor or administrator to pay debts; and if a legatee was allowed to interfere, it would be inconvenient and derange the clear course of administration. In this case the administrator stands upon his rights; and the plaintiffs are without remedy, both upon the ground that they officiously intermeddled with a matter about which they had no concern, and upon the ground that the debt to which they seek to be substituted is barred by the statute of limitations.
PER CURIAM. Bill dismissed with costs.
Cited: Davidson v. Potts,
(371)
