20 N.C. 9 | N.C. | 1838
This case does not raise the question
The obligation before us is made payable to the chairman of the County Court of Guilford. The condition states as facts, that the last will and testament of Harbert Peoples had been duly proved in that Court; that the executors therein named had refused the office, and that upon such refusal administration with the said will annexed, had been committed to the two first named obligors, Sally Peoples and Reuben Folger. It is true that this recital is»found in the latter instead of the preliminary part of the condition, where it would have been more appropriately introduced : ... , rs r . J , but it is not the less on that account a recital, explanatory of the purposes of the instrument. The condition then undertakes to set forth the means by which the obligation executed under these circumstances shall be discharged. It provides that if the persons to whom the administration with the will annexed has been thus committed, shall within ninety days after the date of the bond, return a full inventory of all the effects and credits of the deceased ; shall well and truly and according to law, administer all the effect* and credits of the deceased which shall come into their possession: , shall at the end ot two years, cause a true account to be exhibited of their administration; and all the rest and residue
There can be little doubt but that it was the intention of the parties to this instrument, the Court acting through their chairman on the one side, and the obligors on the other, to secure by it the performance of all those duties which ought have been secured by an obligation from administrators with the will annexed. There is as little doubt but that it was the duty of the Court to require, and of such administrators to execute an obligation that should secure a faithful administration of the assets for the benefit of the legatees. The Statute 21, Hen. 8, ch. 5., requires that if any person shall die intestate, or the executors shall refuse to prove the testament, the ordinary' shall grant administration to the widow or. next of kin or both by'discretion of the ordinary, taking security for a true administration ; and it cannot be questioned, but that a true administration by'an executor or substitute the administrator with the will annexed, comprehends the payment of legacies so far as his assets will permit. The executor indeed is not ordinarily required to give security for that purpose, because he is selected by the testator himself, and the testator not having required surety him to pay the legacies, it was thought unfit that legatees who claim through the bounty of the testator should have the right to demand it; but the administrator with the will annexed is selected by the Court; the deceased had no hand his appointment; the legatees do not claim against him as agent appointed by the testator, but one appointed by the Court, and therefore it was made the duty of the Court to require surety from such officer for a faithful discharge of his duties. (See Washington v. Hunt, 1 Dev. 479.) This provision of the Statute of the 21st Hen. 8, is accordingly incorporated substantially in the late Revised Statutes, vol. 1, ch. It remains then to be seen whether this intention of the parties to this instrument has been so defectively expressed
The difficulty is understood to lie in the last stipulation of the condition for delivering and paying to such persons respectively as the same shall be due unto, “pursuant to the true intent and meaning of the several acts of the General Assembly in such cases made and provided.” It is supposed that “ these persons” do not include legatees, because they claim from the will of the deceased, and not under any act of the General Assembly. But in our opinion these persons do include legatees, because although they claim under the will of the deceased, their claim is expressly sanctioned and made obligatory upon administrators by the acts of the General Assembly. In the first year of our Colonial Legislation of which we have any records, it was enacted that “no executor or administrator shall hereafter take or hold (to) himself (according to the value of appraisemeqt) more of the deceased's 'estate than amounts to his necessary charges and disbursements, and such debts as he shall legally pay within twelve months after administration granted ; but that all such estate so remaining shall immediately after the expiration of twelve months be equally and indifferently divided and paid to such persons to whom the same is due by this act or the will of the deceased,” such persons giving bonds to refund for the payment of debts thereafter discovered. 1715, Swan’s Ed. ch. 43. The same act directs administrators how they shall distribute a “ surplusage,” where there is an intestacy among the widow and next of kin of the intestate, and makes it the duty of the administrator, if any money shall remain in his hands after the term of seven years shall have expired, not recovered by any of kin to the deceased or by any creditor in that time, to pay the same to the Church-wardens and vestry to and for the use of the parish where the said money shall remain. It also prescribes the condition of the bond to be given by administrators of intestates, to which form the present bond conforms mutatis mutandis, and directs that the bond shall be assigned to any person or persons injured, who shall and may maintain an action thereon. By subsequent acts passed before the execution of this bond, the prohibition on the executor or administrator-'to retain more of
There are other considerations which have had an influence in bringing our judgment to the conclusion which we adopt as correct. By the acts of 1807, Rev. ch. 730, and 1813, Rev. ch. 855, (1 Rev. Stat. ch. 46, sec. 6 and 7,) our Legislature has required that executors under certain circumstances shall give bonds for “ a faithful administration,” and' on their failure to do so, the Court shall grant letters of administration with the will annexed. This requisition is avowedly made for the benefit of the legatees, (“ representative” is the term used,) as well as of the eredit-ors, and the only direction as to the form of the bond, is to
The construction which ,we adopt is moreover in the spirit of the adjudications which have prevailed in this state on the subject of administration bonds. According to these adjudications such bonds have an operation which it has been doubted at least whether they have been permitted to have in England. Creditors, who certainly are. not among the persons to whom the rest and residue of the estate, after a full administration and the taking of the account, is to be delivered and paid over, have with us a right to put such bonds in suit, and allege for breach the non-payment of a debt. The words “ the said effects and credits shall well and truly administer according to law,” have been deemed sufficiently comprehensive to provide against every case of mal-administration to the injury of any one; and therefore to enure to the benefit of creditors. The People v. Dunlap, 13 Johns. 437. This construction, which has been supposed to be technically wrong, (see Washington v. Hunt, 1 Dev. 475,) is felt by all to be substantially right upon the great principle of public policy and public justice, that when the state confides to any individual the management of property not his oWn, it is bound to take, and it is to be presumed, in
It is the opinion of the Court that the judgment of non-suit in this case ought to be set aside, and the cause r'emand-ed for a new trial. . -
Per Curiam. Judgment reversed.