Harrington v. . McLean , 62 N.C. 258 ( 1867 )

The bill states that in 1827 Neill McLean and Sarah McNeill were married, having executed a marriage agreement (set out as part of the bill), in which it was covenanted that said Sarah should "have and hold to her own use two negroes, Robin and Sophia, and all of Sophia's increase her lifetime — and the said Sarah McNeill's children should have them after her." Neill McLean survived his wife (who died in October, 1856), and left a will bequeathing most of the negroes to his children by a former wife, and appointing as his executors the defendant M. A. McLean and the complainant, Wm. D. Harrington, who had married the complainant, Margaret, the testator's only child by his wife Sarah; the complainant, W. D. Harrington, was ignorant (259) of the existence of the said marriage agreement, and qualified as executor of Neil McLean, and collected the assets and paid off the debts of the estate; in December, 1858, the said agreement was found among the papers of one of the witnesses who had recently died; at December Term, 1858, of the County Court of Harnett, the defendant M. A. McLean also qualified as executor of Neill McLean, and has held the slaves under the will of the testator; at September Term, 1860, the defendant McDuffie qualified as administrator of Sarah McLean.

The prayer of the bill is, that the slaves be delivered to the complainants, for an account of the hires since October, 1856, and for further relief.

The demurrer to the bill set out several grounds of objection, with a statement of reasons to support them. These grounds are sufficiently stated in the opinion. In regard to matters of substance a demurrer in equity should be general; that is, it should not set out of the grounds of objection, or go into an argument. The proper place for all this is at the hearing; and its introduction into the demurrer tends to prolixity and confusion and an unnecessary accumulation of costs. In regard to matters of form, they should be set out, but not argumentatively, for the purpose of giving the plaintiff an opportunity of amending on terms; and unless defects in mere form are set out, they are not noticed at the hearing.

This much is premised, for the purpose of explaining why some of the points made on the argument are not referred to in this opinion.

The bill is filed for a specific performance of a marriage agreement in respect to certain slaves, and for an account of hires and (260) profits. The equity as to the slaves is at an end by their political death, and the case is now confined to the account of hires and profits up to their emancipation. There is a demurrer, and four causes are assigned.

1st. The bill does not set out the will of Neill McLean.

As the plaintiffs do not claim under the will, it was not proper to set it out in the bill. If it had been set out the bill would have been informal, and liable to special demurrer for unnecessary prolixity and an useless accumulation of costs.

2d. The children of Neill McLean by his first wife are not made parties.

Executors represent the rights and interests of the legatees, and are the only actors in defending suits in which claims adverse to the title of the testator are set up. So the children by the first wife are not necessary parties, and the bill would have been informal and liable to special demurrer if they had been made parties.

3d. Harrington, who qualified as one of the executors of Neill McLean, and is joint executor with defendant Malcom McLean, is not made a defendant, and no process is prayed against him. Harrington is a plaintiff, and of course could not also have been made a defendant.

4th. Harrington, having voluntarily qualified as one of the executors, is estopped from filing this bill against his co-executor for the purpose of defeating a will which he is bound to maintain and execute.

In support of this objection Mendenhall v. Mendenhall, 53 N.C. 287, was relied on. In that case it is held that a widow having qualified as executrix of her husband, could not afterwards dissent from the will and claim dower and a distributive share of his personal estate. For such claims, being under her husband, were inconsistent with the act of qualifying as his executrix. Here Harrington is not seeking to set up a claim under his testator, but is seeking to set up a claim of his wife against the testator, of which claim he had no notice until (261) after he had qualified, and which claim she derives from her mother under an agreement, in fraud of which the testator had appropriated certain slaves to himself, and attempts, by his will, to give a portion to his children by his first wife. Note the diversity.

On the argument it was insisted that Harrington, as executor, having the legal title, must sue at law and not in equity. It is sufficient to say he and his co-executor, the defendant Malcom McLean, hold the legal title as tenants in common, and of course the remedy is in equity.

The other point, in regard to putting the plaintiffs to their election, either to claim under the will or against it, does not arise upon this demurrer. Whether the plaintiffs can be put to their election by a cross-bill alleging the fact that legacies are given to Mrs. Harrington is a matter into which we do not enter.

PER CURIAM. Demurrer Overruled.

Cited: Smith v. Bryson, post, 269; Syme v. Badger, 92 N.C. 713; Trippv. Nobles, 136 N.C. 110.