3 N.C. 60 | Sup. Ct. N.C. | 1798
Mr. Hill cited several cases from Com. Digest to show that the action for moneys due upon the sale of a testator's estate must be brought as executor; and he also cited Laws 1795, ch. 14, sec. 1, where after directing a sale upon credit and bonds with sureties to be taken, it proceeds thus: "And such executor, etc., or administrator, etc., shall, after the time of such payment is past, take and pursue all lawful ways and means to recover and receive the money so due as aforesaid, or otherwise shall be chargeable or answerable for the same; and that such moneys when received shall be liable to the satisfaction of judgments previously obtained, and entered up as judgments when assets should come to the hands of the executor or administrator." And he argued that by this act most evidently the money due upon such bonds is considered as *79 belonging to the estate of the testator, and to be assets to charge the executor only when recovered and received; whereas the authorities which say the executor shall sue in his own name consider the bonds as belonging to the executor himself, who is chargeable for the goods sold, whether he receives the money due upon the bond or not, and supposing the common law to be as contended for on the other side, it is now altered as to this point by the act of 1795, as it substitutes the money due upon the bond when recovered in the place of the goods sold, and makes him not chargeable as formerly for the goods, but for the product of them when received; and, consequently, these bonds being a part of the deceased's estate, and to be sued for in the character of executor or administrator, and not in jureproprio, will, upon the death of the executor or administrator, go to the administrator de bonis non of the first testator or intestate, as part of his estate, and not to the executor or administrator, who since the act has not any property in them, whatever he may have had before.
And of that opinion were the Court, HAYWOOD and STONE, JJ., being present; and they gave the administration to Miss Quince as the greatest creditor of the obligor.
NOTE — See note to Anonymous, ante, 18.
Cited: Cowles v. Hayes,