39 N.C. 385 | N.C. | 1846
The bill is filed by some of the residuary legatees of Simon Clement, deceased, against his widow and her second husband; she being the executrix of the will and one of the residuary legatees. The prayer is for the usual accounts of the estate, and payment of the plaintiff's shares. After an answer, there was a reference to the master to take the accounts. A report has been made, to which neither party has excepted. But the master has, in the report itself, submitted a question for the decision of the Court upon certain facts stated by him, as follows:
The testator married Nancy, the daughter of Hubbard Cozort. He, Cozort, died intestate in 1836, and William Clement administered on his estate. On 31 May, 1836, the administrator made sale of the property, and Simon Clement purchased to the amount of $270.75: for which he then gave the administrator his bond payable nine months after date. On 31 July, 1837, Simon Clement borrowed from the administrator (386) the sum of $442, of the money belonging to the estate, and gave therefor a bond payable to the administrator one day after date. And on 6 October, 1837, he borrowed from the administrator the further sum of $30; for which he also gave a bond payable in like manner. On 15 November, 1837, Simon Clements made a payment of $100, on the bond for $442, and made no other payment on either of the bonds before his death; which happened early in 1838, and before the estate of Hubbard Cozort had been settled or the expiration of two years from the grant of administration on that estate. After the death of Simon Clement, his widow, whom he appointed executrix, proved his will; and subsequently, viz: on 28 May, 1838, she came to an account with William Clement, the administrator of her father's estate, and found her distributive share thereof to be the sum of $1,085, and on that day received the same. The sum then due on the three bonds of her late husband, was $685.34; and she received those bonds in part payment of her distributive share as so much cash, taking thereon the receipts of the administrator, William Clement, to her as executrix. At the same time the administrator took from her a refunding bond, in the condition of which it was recited, "that the above bound Nancy Clement, executrix of Simon Clement, deceased, has received from William Clement, administrator, etc., the sum of $1,085, in full of the distributive share of the said Simon Clement in right of his wife Nancy in the personal estate of Hubbard Cozort, deceased." *299
Upon the reference, the defendants carried the three bonds of the testator into the master's office, as vouchers of disbursements by them. The master neither allowed, nor disallowed them; but he stated an account of the estate, showing the balance in the hands of the defendants if those vouchers should be allowed to them, and also stated a second account, showing the balance in their hands, if those bonds should not be allowed. The master then refers it to the Court to (387) decide which is the proper balance upon the foregoing facts. The Court has several times expressed disapprobation of the manner of reporting adopted in this case. The master ought not to refer back to the Court a point, which the Court has expressly referred to him, or which is necessarily involved in the inquiry he was directed to make. It is much more convenient and renders the proceedings more direct and concise, that the master should decide every question directly, and leave it to the parties, if dissatisfied, to bring the matter up for the decision of the Court by an exception. If, therefore, this were a report made by our own officer, under a reference in this Court, we would not act on it, but direct it to be put into the proper form. But, as the report was made in the Court below and was received there, and the case sent here upon the single point raised in the report, and has been brought on by counsel for a decision without objection, we think it best, perhaps, to proceed in the case in its present shape, especially as the point itself seems to be so plain, that it is not necessary to put the parties to further expense about it.
The Court is of opinion, that the three defendants are entitled to credit in their administration account for the amount of the three bonds in question. The objection to it is founded upon the notion, that the distributive share of Mrs. Clement in her father's estate vested in the testator, as her husband; at least, to the extent of his debts to the estate or to the administrator. But that is a mistake. A debt, legacy, or distributive share of the wife is under the control of the husband, so far as to empower him to release, assign, or receive them. His release extinguishes them, and the collection of the money vests it in him as his absolute property. But (388) if, in his lifetime, he neither releases, conveys, nor receives her choses in action, but leaves them outstanding, they *300 belong to the surviving wife. If, therefore, the testator, in this case, had not owed the debts in question, it could not be argued, that the wife, on the death of her husband, was not entitled to the distributive share of her father's personalty. That he owed those debts can make no difference. It is probable the husband might have formed an expectation, that, in settling with Cozort's administrator for his wife's distributive share, his own debts would be discharged by their being discounted or set off in such settlement. But that was a mere expectation in the testator's own mind, dependent upon the events, that he should not otherwise have paid the residue of those debts, as he had a part, and that he should live to make the settlement. It is certain, that he did not consider his bonds paid in presenti, by being set off against so much of his wife's distributive share. Indeed, it does not appear, that any arrangement whatever, had even been talked of between the administrator or himself on that subject, or that the testator had expressed an opinion on purpose to appropriate to the discharge of those debts an equal sum out of the distributive share. It was not known what the distributive share would be or anything near it, when the debts were contracted, nor even at the death of Simon Clement, which happened before the estate was settled or the time for making a settlement of it had arrived. There was, then, nothing done by the testator, or that occurred in his lifetime, that could affect the operation of the rule of law, by which a distributive share outstanding survives to a wife. The circumstances that the widow herself received the money and her husband's bonds afterwards, and gave a refunding bond in which it is stated, that she received them as executrix of her late husband, does not change the right. It does not appear, that the husband professed (389) to dispose of that interest in his will, or that there was anything else to put Mrs. Clement to an election, by which she should give up her distributive share. Without something of that sort, it is apparent that it was a mere mistake to suppose, that the share belonged to the husband, instead of herself; and that mistake can not preclude her, upon its discovery, from claiming her real rights.
Upon the question submitted by the master, it must therefore be declared, that the defendants are entitled to credit for the amount due on the testator's bonds at the time they were taken up by Mrs. Clement, and interest thereon from that time, according to the first account annexed to the report.
There will be a decree for the plaintiffs according to that amount. The decree will be with costs against the defendants, *301 because the executrix returned no inventory, amount of sales, nor accounts of the administration, before the bill filed, which was upwards of four years after the testator's death.
PER CURIAM. DECREED ACCORDINGLY.
Cited: Arrington v. Yarborough,
(390)
