9 N.C. 15 | N.C. | 1822
The plea of fully administered avers that the defendant hath not, nor at the commencement of the suit or at any time since has had, any goods or chattels which were of his intestate at the time of his decease in his hands to be administered; and the replication to this plea puts in issue the question whether the defendant hath duly administered the assets up to the time of the plea pleaded (1 Saund., 336). The intestate died possessed of personal property to a greater amount than was necessary to pay the plaintiff's debt, but this was taken away by a trespasser before the defendant administered, and it appears that he has not demanded the property, nor made any effort to possess himself (17) of it. The question then arises, whether such property is, in contemplation of law, assets in the hands of the administrator? The property which an intestate possesses at the time of his death devolves on the administrator, who may bring trespass for an injury done to it, after the death of the intestate, and before administration. He may also bring trover, though he never had possession, and the sum recovered shall be assets in his hands, the property in these cases drawing after it the possession by relation. When the law thus arms him with these remedies, and enables him to convert into actual and productive assets everything personal which the intestate had a right to, it would be incongruous that his own negligence, fraud, or collusion, should furnish him with a defense against a creditor who can only reach the assets through the administrator. The correct principle is that all the chattels of the intestate are assets, if the administrator by reasonable diligence might have possessed himself of them. This the jury ought to have inquired into in the present case, but that being excluded by the court, there ought to be a
PER CURIAM. New trial. *20