24 N.C. 72 | N.C. | 1841
Petitions for distributive shares are in the nature of proceedings in equity, and are governed as to the costs, as well as other matters, by the principles and practice of the court of equity. Ryder v. Jones,
But, besides, this case very fully evinces the soundness of the principles on which costs are given in equity; and that the decree here was a very proper exercise of the discretion of the court. The defendant is an administrator, a mere trustee, charged with no breach of trust and guilty of no default whatever. He interposed no obstacle in the way of the plaintiffs. He might have done so without an imputation in this case, since the petition does not make all the next of kin of the intestate parties, nor even the two adult children of Mrs. Byrd; and it would have been but a reasonable precaution to make the objection that they were not parties, in order to protect the defendant from the (74) expense and trouble of accounting a second time with those persons. But the defendant waived everything of that kind, and, without delay, rendered an account, which is found to be correct. Under such circumstances, the defendant ought not to be made to pay the plaintiff's costs nor even his own, but ought to be indemnified for his necessary expenses. Then the hasty institution by the guardian of a suit so entirely needless in the first instance, and the prosecuting of it by appeal from court to court form distributive shares so very small as these, indicate, altogether, that the guardian sought the office that he might vex the defendant with a litigation which he thought would be at the defendant's expense. The suit seems to have been wantonly brought and vexatiously pursued. It is to be observed, too, that the decree as it is does injustice *56 to the defendant, inasmuch as it makes him pay to four of the children of Ann Griffith what was found to belong to all six. This we cannot now correct, forasmuch as the defendant submitted to it. But it furnishes another reason for not disturbing, but affirming the decree appealed from; which is done accordingly and with costs in this Court.
PER CURIAM. Decree affirmed with costs.
Cited: Lewis v. Johnston,
(75)