State v. Jessup
181 S.E.2d 594
N.C.
1971
Check Treatment
HIGGINS, Justice.

The basic question of law at issue in this case is the validity of the bill of indictment. Indictment is the foundation upon which a felony charge must rest. If it be found defective, the prosecution fails.

In this case, the defendant, a son of W. M. Jessup who died on October 12, 1967, is charged with having stolen $20,100 “of the goods, chattels and moneys of the estate of W. M. Jessup, deceased.” The indictment alleges the offense occurred on October 13, 1967, the day following Mr. Jessup’s death. The deceased did not leave a will. Upon his death eo insianti, the title to his real estate vested in his heirs. Paschal v. Autry, 256 N.C. 166, 123 S.E. 2d 569. The title to the personal estate vested in his personal representative. Spivey v. Godfrey, 258 N.C. 676, 129 S.E. 2d 253.

The estate of a deceased person is not an agency for holding title to property. It is the property itself, to be administered by a personal representative commissioned by the court. “Estate” is described as “The aggregate of property ... of all kinds that a person leaves for disposal at his death.” Webster’s Third New International Dictionary.

“In its broadest and most extensive sense, the term ‘estate’ embraces every species of property possessed by an individual and everything of which riches or fortune may consist, and includes both real and personal property, . . .
“. . . . As used in a statute, it may mean property of all kinds held ... by any legal representative appointed by the probate court . . . whose duty it is to keep such *112 property safely and finally to distribute it under the direction of the probate court.” 28 Am. Jur. 2d Estates § 1, p. 70.
“The word ‘estate’ has a broader signification than the word ‘property.’ The former includes choses in action. The latter does not.” Opinion by Pearson, J., in Pippin v. Ellison, 34 N.C. 61.
“A warrant (or indictment) for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning (or holding) property, is fatally defective.” State v. Biller, 252 N.C. 783, 114 S.E. 2d 659. See also State v. Thornton, 251 N.C. 658, 111 S.E. 2d 901.

In the case of State v. McKoy, 265 N.C. 380, 144 S.E. 2d 46, Justice Parker, for this Court said:

“The second (larceny) count in the bill of indictment is fatally defective. While it alleges the larceny of ‘$60.00 in money,’ it fails to designate in any manner the owner thereof or the person in possession thereof at the time of the alleged unlawful taking. . . .
“Since the second (larceny) count is fatally defective and insufficient to confer jurisdiction, this Court ex mero motu arrests the judgment . . . .”

In State v. Law, 227 N.C. 103, 40 S.E. 2d 699, the city officers of Winston-Salem seized an automobile loaded with contraband. They parked it in the city lot. During the night the automobile was stolen. The indictment charged the defendants with larceny from the City of Winston-Salem. The Court said: “Usually a fatal variance results, in larceny cases, where title to the property is laid in one person and the proof shows it to be in another .... ‘In all cases the charge must be proved as laid.’ ” The court held the larceny charge was fatally defective.

In State v. Thornton, supra, this Court said: “If the property alleged to have been stolen is that of an individual, the name of the individual, if known, should be stated. If it is the property of a partnership, or other quasi artificial person, the names . . . should be given .... The bill of indictment on its face is fatally defective.”

*113 After his father’s death, the defendant and each heir, as a tenant in common, had a legal right to enter the packhouse. If any heir or distributee of the estate discovered money or other valuables exposed to loss, it would be proper to take possession for the purpose of preserving it for the administrator. The law recognizes the fact that a period of time must elapse between death and the qualification of the personal representative. During that interval one who takes possession of property belonging to and a part of the estate is a constructive trustee for the benefit of the administrator and must account to him. If he does not account to the administrator, he becomes executor de son tort. The administrator’s duty is set forth in G.S. 28-4 (which comes to us from the Mother Country) :

“§ 28-4. Executor de son tort. — Every person who receives goods or debts of any person dying intestate, or any release of a debt due the intestate, upon a fraudulent intent, or without such valuable consideration as amounts to the value or thereabout, is chargeable as executor of his own wrong, so far as such debts 'and goods, coming to his hands, or whereof he is released, will satisfy.”

The law (G.S. 28-69) provides a quick and immediate remedy by which a personal representative may examine any party if he has reasonable grounds to believe a person, firm or corporation has possession of any property belonging to the estate. The clerk may force delivery or attach for contempt for failure to deliver. This remedy is in addition to other remedies and is for the purpose of discovery and recovery without waiting for the slower process of a suit in the superior court. One who takes and refuses to account to the personal representative, becomes a trustee for the benefit of the estate and subject to the penalties provided for breach of trust.

In the case of Norfleet v. Riddick, 14 N.C. 221, Chief Justice Henderson, for the Court, said that after the death of Thomas Riddick and before Joseph Riddick qualified as executor, Joseph Riddick took possession of certain personal property (claiming it as his own). The Court in discussing his liability said that he was a “privileged intermeddler . . . liable to creditors as executor de son tort.” The case was cited by Ruffin, J., in Burton v. Farinholt, 86 N.C. 261 @ 267, and is quoted in 26 A.L.R. 1362. One who takes and holds a decedent’s property is deemed an in-termeddler. Such person holds as executor de son tort. Norfleet v. Riddick, supra.

*114 The discussion of any question except the validity of the indictment, is by way of answer to the holding of the Court of Appeals that a hiatus exists between the death of the intestate and the qualification of the administrator which permitted the State to charge larceny from the estate. The Court of Appeals for its holding cites as authority the case of Edwards v. State (Texas), 286 S.W. 2d 157. It is true that in Edwards “The indictment alleged the ownership of the money to be in the estate of Mary E. Rose, deceased.” If the indictment contained nothing more, the case would be in point. But, “The indictment alleged the possession to be in W. C. Shandley as one of the heirs of the estate of Mary E. Rose, deceased.” The allegation of possession in Shandley would enable the defendant to establish a plea of former jeopardy if he were again charged for the same offense. Without such latter allegation a defendant could be subject to repeated charges of theft from an “estate.” The allegation of theft from Shandley served to emphasize the defect in the indictment against Jessup.

For the reasons heretofore assigned, we conclude the State’s argument does not satisfy the requirement of the law that the identity of the owner or the person in possession of the stolen property should be named in the indictment with certainty to the end that another prosecution cannot be maintained for the same offense.

We are forced to conclude the indictment in this case fails to charge the ownership, possession, or right to possession of the $20,100 in any person, corporation or organization or agency capable of possessing or holding the title to, or to possession of, personal property. The indictment is fatally defective.

This Court held in State v. Law, supra: “The question of variance may be raised by demurrer to the evidence or by motion to nonsuit. . . . Tt challenges the right of the State to a verdict upon its own showing, and asks that the court, without submitting the case to the jury, decide, as matter of law, that the State has failed in its proof.’ ”

The decision of the Court of Appeals, finding no error in the trial, is reversed. The Court of Appeals will remand the case to the Superior Court of Stokes County with instructions to arrest the judgment, to set the verdict aside and to quash the indictment.

Reversed.