Lancaster v. . McBryde , 27 N.C. 421 ( 1845 )

Detinue brought to recover possession of a bond which, it was alleged, belonged to the estate of William Martin, of whom the plaintiff was the executor, being the executor of Atlas Jones, who was the surviving executor of the said William Martin.

The case is as follows: William Martin died in the year ____, having previously made and published in writing his last will and testament and therein appointed Atlas Jones and Archibald McBryde, his executors. They proved the will. Archibald McBryde died in the year ____ and, by his will, appointed the defendant his executrix. Atlas Jones survived him, and, having removed to the State of Tennessee, there died in the year ____, and after the institution of this suit. The bond in question, and for detinue of which the action is brought, is a part of the assets of the estate of William Martin, and came to the hands of Archibald McBryde, and, after his death, was taken possession of by the defendant as his executrix. The bond was demanded by Atlas Jones of the defendant and, upon her refusal to deliver it, this action in detinue was brought. Pending the suit, Atlas Jones died, and a motion was made to make Samuel Lancaster, alleged to be his executor, (422) the plaintiff. In support of the motion, two papers were produced; the one purporting to be a copy of the last will and testament of Atlas Jones from the records of the court of Pleas and Quarter Sessions of Madison County, in the State of Tennessee, and the other a copy of the probate of the said will and of the qualification of Samuel Lancaster as the executor therof [thereof]. To the introduction of these papers as evidence, several objections were urged: first, that the paper called the copy of the will, did not appear to have been proved in any court in Tennessee, not having any certificate of probate endorsed thereon; and, second, that it would receive no aid from the other papers, as they in no way referred the one to the other, and, if they were so connected, they were not so authenticated as to authorize the court to consider them as evidence. It was admitted they had been transmitted to the counsel of Atlas Jones by his son, and were contained in the same envelope. To each of these papers is attached a certificate, under the seal of Madison County Court, and attested by a person subscribing himself, "Jas. D. McClelland, Clerk," and to each a certain certificate signed by Wyatt Mooring, as chairman and presiding justice of the county court of Madison County, in which he certifies that James D. McClelland, whose name appears to the foregoing certificate, is now and was at the time of signing the same the clerk of said court; that the court is one of record and the attestation in due form of law." The presiding judge overruled the objections, and Samuel Lancaster, as executor of Atlas Jones, was made plaintiff and permitted to prosecute the suit. We perceive no error in this action of the court. It is objected that the papers are not attached to each other nor do they so refer to each other as necessarily to connect them. It would have been more satisfactory if the papers had been so connected, but we know of no principle of law requiring it and the circumstances accompanying them sufficiently, we think, connect them to enable us to see that (423) they do mutually refer to the same transactions and prove that this is a true copy of the will of Atlas Jones and its probate. It is further objected that we have no evidence that Wyatt Mooring was the presiding magistrate of Madison County Court, as the record states there were other magistrates on the bench. It is sufficient for us that thepapers are authenticated in one of the modes required by the act of Congress. We cannot require more evidence of the fact than the law demands, and, in the absence of all contradictory testimony impeaching its truth, it would have been a matter of fact to be decided by the presiding judge, and which could not be reviewed by us. It is further objected that before Samuel Lancaster could be permitted to carry on the suit, as the executor of Atlas Jones, the will of the latter ought to have been proved in some competent county court in this State, and letters testamentary issued to him here. In Helme v. Saunders, 10 N.C. 563, the Court decides that when a probate is obtained in a sister State, and is authenticated as the laws of the United States direct, it is, under the constitution of the United States, in such an authentic form as to supersede the necessity of any probate in the courts of this State; and such an authentication may be given in evidence to sustain a suit, and was certainly sufficient to authorize the court to make Samuel Lancaster a party plaintiff, as the representative of Atlas Jones.

It is contended that the action cannot be maintained, and that the only redress open to the plaintiff was a suit in equity to call the defendant to an account for the assets of William Martin, which came to her hands as executrix of Archibald McBryde. No authority has been cited for this position, and, indeed, it is admitted none can be found. In support of it, however, it is said it would expose the defendant to great litigation and much cost. We cannot perceive how this can be. She is not liable at law to the demands of the creditors of William Martin, for she is not his representative. If no case can be found to sustain (424) the defendant's objection, the cases are numerous which, on principle sustain the action. Coexecutors at law are regarded as one person, all having a joint and entire authority over the whole property of their testator (Wentworth Exrs., 213, 2 Williams Exrs., 620) and upon the death of one, the whole power and authority rests with the survivor, although the deceased executor may have left an executor. Flanders v.Clark, 3 Atk., 509; 2 Williams Exrs., 723. It is the duty of the surviving executor to take possession of the personal estate of the deceased, and this bond, it is admitted, forms part of the estate of William Martin. He alone can maintain an action at law for the money or the property, and he alone is answerable to the creditors. Nor, in equity, can a creditor sue the surviving executor and the representative of the deceased executor except upon the ground of fraud and collusion. Brotton v. Bateman,17 N.C. 119. It is a general rule of pleading that when one of several parties having a joint legal interest dies, the right of action survives, and the action must be brought in the name of the survivor. The representative of the deceased joint party cannot be joined. 1 Chit., pl., 12. Atlas Jones and Archibald McBryde, as executors of William Martin, had a joint legal interest in the bond in controversy; and, on the death of McBryde, that interest survived to Atlas Jones. The defendant could not maintain an action on it against the obligors. Jones alone could do that, and he, of course, was entitled to its possession. It is true, for the reason before given, one executor cannot maintain an action at law again his coexecutor; and this case does not raise the question. The plaintiff and the defendant do not jointly represent William Martin; the former is the sole representative.

These were the only points passed in argument before us, but, as the counsel claimed another, which is stated in the case, it is our duty to examine and decide it. When the executor of Atlas Jones was made a party plaintiff, the defendant was permitted to plead, since the last continuance, that one Kenneth McCaskill had by a decree in equity, recovered from her, as executrix of Archibald McBryde, $2,500 as money due from the estate of William Martin, and that she retained this bond as assets of Martin's estate, purchased by her for the benefit (425) of her testator's estate. The case states that the suit of McCaskill was brought by him against Atlas Jones and Archibald McBryde, for an account of money received by them as his agents from the estate of Martin, and that he had recovered the sum mentioned in the plea, of which the defendant had paid an amount equal to the bond in dispute. The court was requested to charge the jury, if they believed the testimony, they ought to find for the defendant. This instruction was refused, and, certainly, with great propriety. The decree was obtained against the defendant, Jones having in the meantime died without any representative in this State, not as the representative of William Martin, but as the executrix of A. McBryde, one of the agents of McCaskill, in which character the money had been received by him and Atlas Jones. Martin's estate was discharged from the claim. The money, then, which the defendants paid under that decree, was not paid by her for and on account of Martin's estate. She can, of course, have no claim in this Court to hold the bond in dispute to answer for it, against the legal claim of the plaintiff.

Atlas Jones was the surviving executor of William Martin; the bond in dispute is a part of the estate of his testator, in the hands of the defendants; having no legal claim to its possession, the action, after a demand, was rightly brought and the plaintiff was entitled to a verdict.

PER CURIAM. No error.

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