42 N.C. 272 | N.C. | 1851
John Davidson died in 1845. After his death, a paper-writing, purporting to be his last will and testament, was offered for probate in the County Court of Haywood, where he lived and died, by the defendant Potts, who was therein appointed its executor. It was proven in common form, and without notice to any of those interested. Subsequently, the probate was duly, and by the proper court revoked, and the letters testamentary called in, the paper-writing again propounded, and an issue of devisavit vel non made up by the Court. This issue is still pending in the Superior Court of Haywood. No administration pendente lite has been granted on the estate of John Davidson. The bill is filed by a part of the next of kin of the deceased against H. L. Potts and his wife Eve, who is one of the children of John Davidson, and against his widow, Mrs. Davidson and others, his next of kin. It alleges, that, under the paper-writing so propounded, the defendant, Potts, took possession of the whole of the personal estate of the deceased, and, together with Mrs. Davidson, the widow, has sold several of the negroes to persons residing out of the county of Haywood; and "that the plaintiffs are fearful the said H. L. Potts and the said Margaret will send said slaves beyond the limits of the State before said suit can be tried, and verily believe he will do so." The bill prays for a writ of injunction and sequestration, both of which were granted, and were duly executed.
Upon the coming in of the answer, a motion was made to dissolve the *194
injunction, which, upon argument, was refused, and it was continued to the hearing, and the cause removed to the Supreme Court.
The bill in this case cannot be sustained in any point of view. The parties, both plaintiffs and defendants, are the next (274) of kin of John Davidson, standing in equal relation to him, and equally entitled to a due proportion of his personal property — — but none of them are entitled, in law, to its present possession, or to call upon a Court of Equity to interfere in its administration. If the next of kin, without the consent of the executor, where there is one, possess themselves of it, they are trespassers, and are accountable to the representative; and, if they take such possession, where there is no will, and before the appointment of an administrator, they make themselves executors of their own wrong, subjecting themselves to all the responsibilities of a regular executor, without many of his immunities. The bill states, that no administration upon the estate of John Davidson,pendente lite, has been granted. During the pending of the issue ofdevisavit vel non, the paper-writing propounded is not his will, and cannot be so considered, until so found by a jury of the country. It was the duty of the County Court, upon a proper application, to have appointed an administrator pendente lite, whose right it would have been to have taken into his possession all the personal property of the deceased, wherever found within the State. It would have been his duty to sue for, and recover the slaves belonging to it, as well those in the possession of these defendants, as those in the possession of the purchaser from them. The property would then have been safe from the risk now apprehended. It is only through the medium of the personal representative, that Courts of law will interfere in the administration of a deceased person's estate. Such representative is the proper person to collect in the assets, and to be answerable to those who may be entitled to them. Spack v. Long,
If, however, this legal objection did not exist, the relief sought for could not be granted. The plaintiffs did not present a statement of facts, authorizing the use of the power of a Court of Equity to take property out of the hands of him, who is in the possession of it. If they were equitably entitled to claim it, they do not allege any facts, showing that their fears of its removal are well founded. Selling some of the negroes within the State is no such fact.
PER CURIAM. Bill dismissed with costs.
Cited: Mitchell v. Mitchell,
(276)
