39 N.C. 465 | N.C. | 1847
This was an injunction bill. The bill states, that William Mills died intestate, "leaving seven children," and that "the said heirs met, and by common consent divided the personal estate of said intestate, by which division a boy, named George, and a girl, named Nelly, fell to the share of Asa Edney; that the value thereof exceeded one-seventh part of the said personal estate, and that "the said Edney then executed four forty-five dollar bonds to the other heirs for the overplus, and that all of them have been paid by said Edney's executor, namely, the plaintiff, Ambrose J. Edney." The bill further states, that "some time thereafter, Elisha King and Benjamin King obtained letters of administration of the estate of the intestate, *357 William Mills, and thereupon required all the heirs to bring forward the property of the estate and have it sold; upon which the said Nelly was surrendered by the said Asa Edney (the boy George having been sold by him), and the said Nelly was then sold by the administrators and bought by the said Asa, he being the highest bidder, at the price of (466) $362, for which he gave his bond, with Samuel J. Edney, one of the plaintiffs, as his surety." The bill further states, that "at the execution of the said bond, the administrators, to whom it was payable, expressly agreed, that, if the division, as made by the heirs, was ever rendered valid by common consent or otherwise then the said bond should be canceled," and that it was upon that agreement and condition the said bond was given. The bill further states, that "afterwards Elisha King, surviving administrator, agreed, together with the heirs and distributes of William Mills, to refer the whole matter to B. Shipp and Joshua Roberts, and that said award has been made and confirmed, without allowing a credit of the said $362, and, if so, that they have failed to allow said Edney credit for the four $45 bonds, which he had long ago paid for said girl." The bill then charges that "the said award was a final settlement of said estate, and that, upon said settlement, the said bond for $362 should have been surrendered," as the estate of said William Mills is freed from debt, and there is no necessity for collecting it, and that it ought not to be collected, because the said girl Nelly was the absolute property of the said Asa Edney, and therefore he received no value for the said bond, but making the sale and taking the bond by the administrators was a fraud upon the said Asa." The bill then states, that judgment at law had been obtained on the bond, by the surviving administrator against the plaintiff, Ambrose J. Edney, the executor of the principal obligor, Asa Edney, and against the surety, Samuel Edney, who is the other plaintiff upon which the plaintiff at law threatens to levy the debt and costs. Thereupon it prays process of subpoena, "to the said defendants, together with the sheriff and the Clerk of the Superior Court of Henderson County, commanding them to be and appear, etc., and that the said Clerk and (467) sheriff be enjoined from all further attempts to collect said iniquitous judgment," and for further relief. An injunction was granted by a Judge out of Court, as prayed in the bill.
The Clerk and the sheriff put in answers, in which they state, that they have no interest in the subject-matter of the controversy, nor any agency touching the same, except only in their official capacities to issue and execute the process of the Court. *358
Elisha King, the surviving administrator of the intestate, William Mills, appeared as a defendant in the cause, and put in an answer. It states, that "after the death of the intestate, his children or a part of them supposed, that a paper-writing, which purported so to be, was his last will and testament, and that they met, and made a partial division of the estate among themselves, but that, afterwards, the paper was offered for probate, as a will, and, upon a caveat, such proceedings were had, that the said paper was duly found not to be the will or testament of the said William Mills, deceased, and the Court pronounced that he died intestate, and thereupon granted administration to this defendant and to one Benjamin King, since deceased." The answer further states, that the administrators demanded different parts of the personal estate of the intestate from the persons who had the same in possession; but that several of them refused to surrender the negroes they had received; that Asa Edney had sold the negro George for $1,200, and, of course, did not surrender him, but did surrender Nelly; and that at a sale made by the administrators, he purchased her and gave the bond for the price stated in the bill. But the answer denies, that the bond was given on any condition or agreement, other than what appears on its face. It states further, that, at the request of the next of kin of the intestate. and to save the expenses of many suits, which the administrators were about to bring for the property not surrendered to them, they agreed to a reference, proposed by the next of (468) kin to Messrs. Shipp and Roberts, to make a full and final settlement and division of the estate amongst the next of kin; and that it is true, that the said arbitrators made a settlement and division amongst the next of kin and awarded accordingly; and that by the said award this defendant was charged with the payment of certain sums of money, and that the fund for the payment thereof consisted of this bond of Asa Edney and of others, which were taken at the sale, and remained in his hands, uncollected. The defendant states, that he is informed by the arbitrators, that they did take into their consideration the four notes or bonds for $45 each, given by the said Asa, that are mentioned in the bill, and gave him credit therefor in making the award: and the defendant believes it to be true, and avers that the plaintiffs have no just claim to any credit on the bond and judgment, but that the whole debt is justly due."
Isaac B. Sawyer and his wife Mary and several other persons put in answers in which they state themselves to be grandchildren of William Mills, deceased, or otherwise related to *359 him; but they do not set forth anything material in other respects.
Upon the answers being put in, the defendants moved to dissolve the injunction; and thereupon, by leave of the Court, the plaintiff filed, as an exhibit, a copy of an award by the arbitrators, named in the pleadings. It recites, that E. King, the administrator of William Mills, and John Mills, Marvel Mills, Samuel Edney and wife, Asa Edney and wife, George Jones and wife, P. Myers and the heirs of Mourning Lewis had referred to them to settle the said estate and to make an award upon the same; and thereupon they award as follows, to wit: (469) "That there is found in the hands of E. King, administrator, the sum of ............................................. $ 678.93 In the hands of M. M. Edney, former administrator ........ 435.00 Amount against P. Brittain, for which we have awarded ................................................ 901.00 George Jones, on which judgment is recovered.............. 106.19 A. J. Edney, administrator of A. Edney ................... 14.48 Marvel Mills, on which judgment has been recovered........ 12.71 _________ Amounting altogether to the sum of........................ $2,145.51
Out of which we have allowed the administrator, as follows:
His commissions....................................... $ 125.00 Attorney, N.W. W..................................... 50.00 Attorney, A. L. W..................................... 25.00 Other vouchers........................................ 100.40 ________ $300.40
Leaving in the hands of the administrator for distribution, the sum of........................................... $1,845.11
Which sum of $1,845.11, we direct and award that he pay the following distributees, to wit:
To the heirs of Mourning Lewis, the sum of................ $ 912.66 To P. Myers the sum of.................................... 740.46 To the representatives of John Mills, the sum of.......... 173.63 To Samuel Edney, the sum of............................... 8.61
Upon the pleadings and exhibit, the Court allowed the defendant's motion and dissolved the injunction with costs to the *360 defendant, E. King, reserving the question of costs, as to the other defendants, until the hearing. From this decree an appeal was allowed to the plaintiffs. If the plaintiffs had merits, the bill is so imperfectly framed, that the Court could not afford them the relief they ask, or any part of it. The supposed testator, Asa Edney (for neither his death nor will are stated in the bill), purchased from the defendant King, the administrator of William Mills, a negro belonging to the estate and gave his bond for the price; and the plaintiffs in this suit seek to be relieved from paying it. On what ground they consider themselves entitled to the relief, it is not easy to say upon their bill. It may be supposed, perhaps, that Asa Edney is entitled to a part of the estate of the intestate, William Mills, and we conjecture that it was intended so to state in the bill. But there is no such statement in it. The bill begins by showing, that the intestate died, "leaving seven children": but who they were, or that Asa Edney was one of them, nowhere appears. From the difference in the names, the presumption is, that Asa Edney was not one of the seven children. Then, it may be, that he married a daughter of the intestate, and that is probably the truth, and we would so presume, if the Court could proceed to determine rights upon such loose guesses. But that can not be done; and, therefore, every person, who claims to recover either at law or in equity, must show a title in the pleadings, and that ought to be done by distinct averments or plain affirmative statements. It can not be assumed, that Asa Edney was one of the intestate's seven children, or entitled in right of one of those children, or otherwise, to a share of his estate; since there is no such allegation in the bill. It is true, that the bill is entitled "the bill of complaint of Ambrose J. Edney, executor of Asa Edney, deceased, and of Samuel J. Edney against Elisha King administrator of William Mills, deceased, and Marvel Mills, P. Myers, William S. Mills, George Mills, Louisa Camp, John Camp, John Dillen, Winsom Edney, Sarah Edney, William J. Lewis (and upwards of twenty other persons of different names) heirs-at-law and legal representatives, (471) of William Mills, deceased." But that in no degree helps the plaintiff's case. For, in the first place, the title of a bill is no part of it. It is merely a mode of conveniently denominating a bill or cause, and it can not be deemed *361 a part of the statements of the bill, either as to the title or the parties. But if it were otherwise, still no title would appear in Asa Edney, because the persons named in the title of the bill as defendants, are called "heirs-at-law and legal representatives of William Mills, deceased," thus excluding Asa Edney from that character. Moreover, instead of seven next of kin, there are here upwards of thirty named as such. The bill, therefore, clearly could not be maintained for any purpose, as this objection goes to the whole foundation of the plaintiff's equity. For it does not appear to what share Asa Edney was entitled, nor, with any certainty, that he was entitled to any, and if he was not, as one of the intestate's next of kin, entitled to a seventh part of the estate, there is no ground whatever for the title set up for him to the negro girl, Nelly, nor any reason why he should not pay the sum bid for her. But if the allegations of the bill upon that point had been formal and distinct, and it were admitted that Asa Edney was, as one of the next of kin, entitled to one-seventh part of the estate of the intestate, yet the plaintiffs can have no relief on this bill, because it in no manner appears upon it, either by particular or even general allegations, that he did not receive his seventh part, over and above the amount of the bond given for the price of Nelly. It is admitted that he got George (of the value as stated in the answer of $1,200), and that he paid $180 to some persons claiming to be of the next of kin, which left $1,020 in his hands; and there is no allegation that a full share amounted to more than that sum. Indeed there is no statement of the particulars or value of the estate, nor, consequently, of the amount of a distributive share. It is said, indeed, that the two negroes, George and Nelly, exceeded a seventh part by the sum of $180, but no value is set upon Nelly, and therefore the whole matter is still left in (472) obscurity. If, however, it be taken as an inference from the statements of the bill, that George and Nelly, after deducting $180 from their value, were equal to a share of one-seventh, and that Nelly was estimated in the division at the sum of $362, for which she was afterwards sold; still the matter of the bill is too defective to authorize any decree for the plaintiffs. For the share of Edney, for which he received those negroes, was calculated according to the estimate of the estate, as made by the parties to that division. Now it is plain that objections were raised to that by the other persons interested, either because the estate was erroneously estimated, or because the division ought to have been made as upon an intestacy, whereas it was made upon the footing of a will, or for some *362 other reason; and that a controversy existed in the family as to the proper principle of division, in consequence of which an administration was taken on the estate, that it might be distributed according to the due course of law. Under that administration Nelly was sold and purchased by Asa Edney; and the administrator was about to bring suits, for other property not delivered to him by the several next of kin, including, no doubt, the negro George, which Edney had converted. Under these circumstances, the bill states, that, when Edney gave his bond, the administrator agreed, that, if the previous division was valid or should ever be rendered so by the general consent of the next of kin or otherwise, then the bond for the price of Nelly should be canceled. If this agreement be relied on as the ground of relief, it behooves the plaintiff to show, either that the division was in truth according to the rights of all the next of kin; or that it was subsequently confirmed or made valid by an agreement of the next of kin, or in some other manner. To show the first, no attempt is made, and we are at much loss to determine whether the bill meant to charge (473) the latter. It states, that the administrator and the next of kin — called in the bill "heirs and distributees" — agreed to refer "the whole matter" to two arbitrators. What the "whole matter," thus submitted, was, we are not told, but are left to conjecture. Certainly, however, that reference can not be construed into "a general consent" of the next of kin "to render the previous division valid"; because, if the reference related to this estate at all, it must have involved a settlement of the administrator's accounts, and the proper distribution of the estate among the next of kin. Therefore the plaintiff's rights, if an award was made, must depend upon the award in his favor. In other words, when he calls upon the administrator to deliver his bond or discharge him from the payment of it, he must show, as the ground of that relief and upon the agreement, which the bill states to have been made when the bond was given, that the arbitrators awarded expressly, that the administrator should deliver up the bond, or, at the least, that they confirm the division which had been made, or awarded that Nelly belonged to Asa Edney, and that, by mistake, he bought his own property. Now the bill states not an award to that effect; and, indeed, although it says "an award was made and confirmed, and that it was a final settlement of the estate," no part of its contents is set forth in the bill, as awarding anything to the plaintiffs touching the subject of this suit. On the contrary, it rather complains of the award, because, in making it, the arbitrators did not allow Edney a *363 credit for the $362, and also (as we suppose the bill to have meant) because they did not allow him a credit for the $180. The bill, therefore, instead of setting up a title under the award, rather impeaches it by insinuation. But as a bill to impeach an award, it is entirely defective; for it neither states the award, not any particular error therein, nor any fraud in the arbitrators, not mistake by them, either as to manner of law or fact — not even alleging that these claims were set before the arbitrators, or made known to them, nor assigning (474) any reason, why they were not. Upon the fact of the bill, therefore, the plaintiffs have no case for relief. But, if the bill had properly charged the matter, which, perhaps, the party wished to set forth, the merits of even that case are completely disposed of in the answers. The administrator positively denies, that there was any condition or agreement, that the bond should be surrendered in any event; and, moreover, he states, that the arbitrators did take into consideration the $180, which Edney paid, and also charged the administrator with Edney's bond for $362, and it was a part of the fund in his hands. which he was required by the award to distribute among the other next of kin.
So, in every point of view, the dissolution of the injunction with costs was right; and we can only express our regret, that costs had not been given immediately to the sheriff and Clerk. Those persons were most improperly made defendants, as they are merely ministers of the law, and have no interest whatever in the controversy. Upon notice of the injunction it would, it is true, have been a contempt in the sheriff to proceed on the execution; but to that purpose notice would have been sufficient, and it was very wrong to serve a subpoena on them and put them to the expense of appearing in the cause, and putting in answers as defendants.
The interlocutory decree is affirmed with costs in this Court, and this must be certified to the Court of Equity of Henderson County.
PER CURIAM. ORDERED ACCORDINGLY.
Cited: Lackay v. Curtis,
(475)
