Huson v. . McKenzie , 16 N.C. 463 ( 1830 )

The will of Mason Huson was filed as an exhibit, and it appeared from it that he left six children, and his wife enciente with another, to five of whom, and the one unborn, he had bequeathed the residue of his estate, as a daughter, Elizabeth, had been provided for by her grandfather.

The defendant McKenzie, who alone answered, admitted the conveyance by Friddle as charged in the bill, but insisted that he was not accountable for a waste of the assets committed by Friddle or his wife. The bill is filed for the purpose of setting aside a conveyance made by Friddle and wife to the other defendant, on the ground that the executors fraudulently conveyed, in payment of a private debt, the estate of their testator, which they held by the express terms of the will, in trust for the children of the testator. The Court has looked into the will and the answer of McKenzie, and it thence appears plainly enough that the deed cannot stand unless upon the general accounts of the estate, debts of the testator or a balance due the (465) executrix shall be found to justify such a disposition of the property as has been made. Upon the merits, as now indicated, there would be no hesitation in decreeing the relief prayed. But the will itself is so fatally defective that nothing can be made of it. The will carries the rent of the lands, and the negroes, and their hires and issues, first to the education of the children, and then into the general residue of the estate, after making up such losses as might occur in the legacies by the death of the slaves specifically bequeathed; and the will shows five children, besides Elizabeth (who is excluded from the residue) and the unborn child of which the testator thought that his wife might be enciente. The bill is brought by only three of the children, without making any of the other parties, or assigning a reason for the omission, and it prays simply that this conveyance may be declared void and the estates conveyed to some other trustee.

It is impossible that isolated acts in the course of an administration can be made the subjects of a suit. Their merits cannot be determined without going into the whole estate, and there is nothing in the pleadings to cover such an extended inquiry. The Court cannot permit litigation to be multiplied by splitting up a maladministration into all its particulars, and making each the subject of a suit. The whole forms but one trust and subject of litigation. Parties under such a practice as is attempted, would be ruined by costs, and the court harassed continually by repeated investigations of the same matter. Besides, all the parties in interest must be before the court. How can we declare the conveyance void, and deprive the executors of the trust, and appoint another trustee, without knowing the wishes of the other legatees? If, indeed, a formal party alone were waiting, the Court might overlook it, or send the case back, to have the defect supplied. But here the (466) cause is brought to a hearing upon a bill so entirely founded on a misconception, and defectively framed, that it is incapable of amendment, without making a new case altogether.

PER CURIAM. Decree that because it appears from the will of Mason Huson in the pleadings mentioned that there are, besides the plaintiffs, other residuary legatees, who by said will are entitled to shares in the testator's estate, and particularly in the portions of it in controversy in this cause, and they are not made parties to the suit, nor any reason assigned for the omission; and because no general account of the testator's estate is sought in the bill, or can be taken under it, the bill is dismissed with costs. But declare that this decree is without prejudice to any proper bill to be brought by the plaintiffs for such general accounts, including the subject-matter of the present bill.

Cited: Clark v. Edney, 28 N.C. 53; Ward v. Turner, 42 N.C. 75.