Smith v. . Bryson , 62 N.C. 267 ( 1867 )

The bill was filed for an account and settlement of the affairs of the firm of Smith Nolen. The plaintiff is the surviving (268) partner, and the defendant one of the administrators of the deceased partner, W. W. Nolen, and the bill charges, among other things, that Nolen misapplied the effects of the firm, and appropriated large sums to his own use without rendering any account therefor.

It is set out in the bill that "Nolen died intestate in October, 18. ., leaving your orator surviving partner of Smith Nolen, and that, at the Court of Pleas and Quarter Sessions for the county of Macon, at ....... session, 18.., your orator and the defendant James H. Bryson were appointed administrators of the estate of the said Nolen, and duly qualified as such."

At the return term the defendant filed a general demurrer, which was set down for argument, and the cause transmitted to this court. The plaintiff, as surviving partner, asks for an account against Bryson, who is one of the administrators, and againsthimself, who is the other administrator of the deceased partner. In other words, the plaintiff takes position upon both sides of the case! and when the account is to be taken, he will represents his own interest as plaintiff, and also have a right to represent his deceased (269) partner. It is apparent that an account can not be ordered under such circumstances, especially as the bill makes grave charges of fraud on the part of the deceased, of whom the plaintiff is one of the representatives! The only mode of proceeding for the plaintiff is to apply to the County Court to revoke the letters of administration, so that his deceased partner may have something like a fair showing Griffin v.Vanheythuysen, 4 Eng. L. and E., 25, is in point. There a cestui que trust administered upon the estate of one of the trustees, and jointly with the other cestui que trust sued the surviving trustees, charging a misapplication of the trust funds by the deceased trustee. The Vice-Chancellor says: "The decree would involve an account of the estate of Vanheythuysen received by the plaintiff Griffin. Now, how could such an account be taken, as between Griffin and his co-plaintiffs in the suit? There is a direct conflict of interest between Griffin as representative of Vanheythuysen and his coplaintiffs. The principle of the objection is, that the suit was so constituted that the account could not be taken," etc.

This case differs from Harrington v. McLean, ante, 258, in many respects. There the primary object of the bill was to have a specific performance of marriage articles in favor of the feme plaintiff in respect to certain slaves, and although the primary object failed by the political death of the slaves, it was allowed to be carried on for an account of the hires of such part of the slaves as had been in the possession of the defendant; and, although Harrington, one of the plaintiffs, was the coexecutor of Neill McLean, with the other defendant, Malcom McLean, yet it was alleged and proved that, at the time he qualified, he was ignorant of the existence of the marriage articles under which his wife derived her title.

PER CURIAM. Bill dismissed with costs.

Cited: Gay v. Grant, 101 N.C. 213.

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