Oliveira v. University of North Carolina , 62 N.C. 69 ( 1867 )

The bill alleged that the complainant was sister of one Simao da Rocha Oliveira, who died intestate in Bertie County in 1850, leaving a large personal estate, which, having been administered upon in the year 1859 or 1860, was paid over to the University as escheated property; and that in 1861 the complainant had demanded such property from the defendant, but the latter had declined to settle except according to law. The prayer was for discovery, an account and for further relief. The causes assigned for demurrer are: (1) That the administrator is not a party; (2) That the complainant has complete remedy at law.

1. Seven years after the qualification of an administrator, it is his duty to pay over to the University all sums of money, or other estate, which shall remain in his hands unrecovered or unclaimed by suit, by creditors or next of kin. And the University has the right to hold the same, without liability for profits or interest, until a just claim therefor shall be preferred by creditors, next of kin, or others entitled thereto. Rev. Code, ch. 46, sec. 27. As soon as the administrator performs this duty, he is thereby, and immediately, divested of his character of trustee of the fund, and the University is substituted in his place, with all his liability to creditors and next of kin. There is, therefore, no necessity that the administrator should be a party, even supposing he is alive.

2. The recovery of distributive shares in intestates' estates by the next of kin, is a well recognized subject of equity jurisdiction; and such jurisdiction is not to be ousted by any supervening jurisdiction of courts of law, excet [except] by express enactment or clear intendment. Barnwellv. Threadgill, 40 N.C. 86. Supposing, therefore, that the complainant has complete remedy at law, which is by no means clear, it is only concurrent and not exclusive; but further, it is to be observed that the bill seeks discovery, and therefore is peculiarly within the jurisdiction of this court.

For these reasons the demurrer is overruled and the cause remanded, to the end that the defendant may answer.

PER CURIAM. Demurrer overruled.

Cited: Humphrey v. Wade, 70 N.C. 281.

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