Munds v. . Cassidey , 98 N.C. 558 ( 1887 )

From the judgment confirming the report, both parties (559) appealed.

James Cassidey died in December, 1866, leaving a will, which has been admitted to probate, and among other dispositions of his property contains a clause in the words following:

"After the death of my wife I desire and direct that my dwelling-house and lot, or homestead, as above described, and also my said brick house and lot on Market Street, shall be sold by my executor, in such manner and on such terms as he may deem best and most advantageous, and from the proceeds of such sales I give to my son, Francis A. L. Cassidey, the sum of two thousand dollars, and to my son Henry Clay Cassidey the sum of one thousand dollars, and all the residue of the proceeds of the said sales I give to be generally divided among all of my children, including Frank and Henry."

In January, 1882, the testator's wife having died, the executor, Robert Henning, in pursuance of the will, sold the homestead, brick house and lot on Market Street, and distributed the proceeds as directed, appropriating to the two sons the sums respectively given to each, increased by the addition of their shares one-seventh of the surplus, to wit, seven hundred and fourteen dollars and fourteen cents.

In April, 1884, the executor rendered and filed in the clerk's office his final account of administration of the estate, and also an account stated with the said Francis A. L. and Henry C., in which is shown to be jointly due them the sum of nine hundred and nineteen dollars and eighty-two cents, which he then paid into the office.

On 9 December, 1870, the said Francis A. L. executed a deed to said Henry C., the operative words in which undertake to convey certain property therein thus described: "all the right, title and interest devised by the will of the late James Cassidey to Francis A. L. Cassidey, in and to the undivided property of whatever nature, situated in (560) blocks 99 and 165, according to Turner's plan of the city of Wilmington, to have and to hold," etc., and the land thus referred to is conceded to be that sold by the executor.

The plaintiff, under supplemental proceedings, pursues and seeks to subject to the payment of his judgment against said Henry C. so much of the fund in the hands of the clerk as may be necessary for its satisfaction, insisting that by virtue of said deed it had become and was exclusively the property of the debtor.

At January Term, 1887, of the Superior Court of New Hanover, the said Francis A. L., for himself and as trustee for his wife, Henrietta Bell, and others, under deeds theretofore executed, is allowed to file an interplea, which he does at great length, detailing the financial relations between himself and said Henry C., and other matters pertinent and explanatory, denying that the debtor is entitled to any of said moneys, and demanding that a restraining order, previously issued, detaining them in the clerk's office, be dissolved, and that the clerk be directed to pay over said moneys to him. At the same time a reference was made to Eugene S. Martin, Esq., "to find all the facts and the law in the case," and that he report at the next term.

The referee made his report accordingly, in which he finds that the debtor was entitled to no part of the moneys deposited with the clerk by the executor, and that they belonged wholly to said Francis "A. L.: and further, that the deed of 9 December, 1870, from said Francis A. L. to his brother Henry C., by reason of insufficient words of description of the subject-matter, was inoperative to transfer the fund.

To the report the plaintiff filed sundry exceptions, which, summarily stated, are:

1. To the finding that the deed of 9 December, 1870, was ineffectual as an assignment of the fund.

(561) 2. To the finding that the executor's account is wrongly stated, and in correcting the same; and

3. To his considering the claim by interpleader in the causes.

These exceptions were overruled, the report confirmed and judgment rendered against the plaintiff, and he appealed. The first inquiry arising upon the exceptions is as to the regularity of the action of the court in admitting the claim to the fund made in the interplea.

Proceedings supplementary to execution is but a prolongation of a pending action, and as full redress, both in law and equity, may now be obtained by a resort to this statutory remedy, it is but a substitute for the former creditor's bill, and partakes of its essential nature as a new and independent, though, subsidiary suit, as held in Rand v. Rand.78 N.C. 12; Hinsdale v. Sinclair, 83 N.C. 338. Hence, the right to sue out the process rests upon the same general conditions and limitations as the creditor's bill in the former practice, and it is in accord with the policy of the new system to settle all controversies about the right to property in litigation, where the nature of the action will admit, to allow a new claimant to come in and interplead. The Code, sec. 189.

2. The executor having stated his account with said Francis and Henry as a joint account and as equally interested in the fund, when in fact they were not, it was entirely competent for the referee to adjust it properly between them, a matter in no way injurious to the executor, for the amount remains unchanged, thus showing that none of it belonged to the judgment debtor, and that the said Francis was entitled to it all.

(562) 3. The next exception is to the finding that the deed conveyed no interest in the fund subject to the plaintiff's process.

The exception, in our view, is well taken, and there is error in overruling it. When the assignment was made the land remained as it was when the testator died. The terms of the devise and the description of what was intended to be transferred in the deed from the one to the other of the parties to it have been already set out and need not be repeated. The estate in remainder during the wife's life descended to the heirs at law, of whom the said Frank and Henry were two, and these latter had only a fractional share, unless there is some other clause in the will by which it is devised, and their interest was only in the proceeds of sale when the property was sold. Ferebee v. Proctor, 2 D. and B., 439; McLeranv. McKethan, 7 Ired. Eq., 70; Beam v. Jennings, 89 N.C. 451.

Now, the conveyance of the property in this condition is of "all the right, title and interest of the assignor devised by the testator," in and to the undivided property of whatever nature, situated in blocks designated by numbers in the plan of the city.

In the absence of other dispositive words in the will to interrupt the descent, the fractional shares so descending to all the testator's children are not embraced in the deed, which is confined to such interest as these brothers drive under the will, and not to such as come to them as heirs at law. The legal estate does not pass, and consequently nothing can but what is given in the will. The instrument is unmeaning unless the construction put upon it embraces the moneys to which the assignors would become entitled when the conversion is made by the executor.

Again, this interest is in the undivided property, of whatever nature, in the specified lots, that is, in what may be derived from the sale of the lots. In our opinion, such is the manifest intent of the parties, and it is sufficiently defined in the terms employed to give it fulleffect. Lowdermilk v. Bostick, ante, 299. (563)

There is error, and the judgment must be reversed, to the end that the cause may proceed in the court below.

Error.

Cited: Perkins v. Presnell, 100 N.C. 224; Lee v. Moseley, 101 N.C. 316;Wilson v. Chichester, 107 N.C. 389; Vanstory v. Thornton, 112 N.C. 214;Jones v. Alsbrook, 115 N.C. 51; Chitty v. Chitty, 118 N.C. 653;Wool v. Fleetwood, 136 N.C. 467; Speed v. Perry, 167 N.C. 129; Barbeev. Cannady, 191 N.C. 533.

THE DEFENDANT'S APPEAL

The facts are stated in the opinion.