Colson v. . Martin , 62 N.C. 125 ( 1867 )

In this will certain slaves were left to the testator's widow for life, and then to the said Lemuel. The widow outlived Lemuel, and died in 1858. She had allowed the defendants, James and Edmund, to take with them to Texas two of the slaves, which at her death would have gone to Lemuel, their father. Besides these, Lemuel left several children, one of whom, Emily, married James M. Waddill, and died leaving children. One Hough administered upon her estate, and since her death her husband has also died, leaving a will and an executor. Another daughter of Lemuel was Eleanor, who married Thomas Waddill, and died leaving children. The complainant made parties to his bill, amongst others, the executor of Emily's husband, as well (126) as her children; also the husband of Eleanor, and her children. It asked for instructions as to who were entitled to the interests of Emily and Eleanor, and as to the duty of complainant in regard to the slaves taken, as above, to Texas.

Answers were put in, and at Spring Term, 1861, the cause was set for hearing, and by consent transferred to this court. Under the will of James H. Martin his widow, Charlotte Martin, took a life estate in the property, with remainder to Lemuel K. Martin, the complainant's intestate. Lemuel K. Martin died intestate in the lifetime of the tenant for life, and his remainder vested in the complainant as his administrator, for the benefit of the next of kin.

Emily, one of the daughters of Lemuel K. Martin, intermarried with James M. Waddill, and died after the death of her father, but in the lifetime of the tenant for life; and her interest vested in her administrator for the benefit of her surviving husband. Her husband then died in the lifetime of the tenant for life, and upon his death his beneficial interest vested in his executor, the defendant, Mr. Hargrave. Woodley v. Gallop, 58 N.C. 138;Coleman v. Hallowell, 54 N.C. 204.

The same facts and principles apply to the interest of Eleanor, another daughter of Lemuel K. Martin, intermarried with Thomas Waddill, except that Thomas Waddill is still living, and is entitled to the interest of his deceased wife, Eleanor, through her administrator.

The complainant was not obliged to go to Texas to recover the property of his intestate in the hands of the defendants, James H. Martin and Edmund Martin. But it is his right and his duty to retain their shares in the estate in his hands, and to hold them to an account for the benefit of the estate, to the extent of the value of the property upon the termination of the life estate of Charlotte Martin, if of (127) less value than their shares; and to the extent of the value of their shares if the shares are of less value than the property.

We have had some doubt as to allowing costs. An administrator or executor will not be allowed costs where the questions raised for the advice of the court may, with reasonable certainty, be solved by counsel; nor where costs are improvidently incurred in making unnecessary parties; all of which seems to be the case here. But as the questions raised have really been controverted by some of the defendants in their answers, we suppose that if the complainant had acted without the advice of the court, he would have been sued at all events. He is therefore allowed his costs, including $35, expenses incurred in attending on the clerk to state an account, to be paid out of the shares of James H. Martin and Edmund Martin, in the fund in complainant's hand. The defendants who have answered, except defendant Hargrave, whose cost must be paid out of the fund, must pay their own costs. And the complainant must pay, out of his own funds, the costs of making parties the other defendants, who have not answered except the defendants James H. and Edmund Martin aforesaid.

PER CURIAM. Decree accordingly.

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