Leach v. . Jones , 86 N.C. 404 ( 1882 )

The plaintiff claimed title to the land described in the complaint by virtue of a judgment of the superior court of Wake, rendered at June Term, 1878, in favor of J. P. H. Russ and Jesse Perry against the defendant as executrix, in which it was adjudged, upon the report of the referee to whom it had been referred to take an account of her administration, that she was guilty of a devastavit of the assets of her testator, (L. Jones), and the judgment was against her as executrix and in her own right by reason of the devastavit. The plaintiff offered in evidence the execution issued upon said judgment, the sale, and the deed of the sheriff of Wake conveying to him the land in dispute.

The possession of the land by the defendant was admitted.

The defendant was qualified as executrix of L. Jones, deceased, in the year 1865. Judgment for plaintiff, appeal by defendant. There were several exceptions taken by the defendant to the report of the referee upon which the judgment was founded, which were properly overruled by his Honor. She offered to show in evidence a deed of mortgage executed by her in 1875, conveying the land in question, duly registered, which was still unsatisfied, but his Honor refused to admit the evidence upon the grounds that the mortgagee had no possession, and there was no mention of any mortgage in the answer. There was no error in the rejection of this evidence. The defendant having been the defendant in the execution and in possession when the land was sold and when the summons was served in this action, could not defeat the plaintiff's recovery by showing title in a third person. Islay v. Stewart, 20 N.C. 297.

There were some other exceptions taken by the defendant in the argument here, which besides being unimportant were obnoxious to the objection of not having been taken in the court below.

But the defendant insisted that she was entitled to her homestead in the land in controversy, and her right to a homestead was discussed in this court, as depending upon the time when the devastavit was committed by her, the defendant contending that she was not fixed with the devastavit until the report of the referee was confirmed by the judgment against her in June, 1878; and the plaintiff on the other hand insisting the devastavit was committed between the years 1865 and 1867. But we are of the opinion it was an immaterial inquiry when it was committed, so it was done prior to the commencement of this action. For the liability of the defendant attached upon her qualification as executrix in the year 1865. The contract to pay the debts of the testator then commenced. The obligation then (406) assumed by the defendant as executrix is embraced in the oath then administered to her, to-wit, that she would well and trulyexecute the will of the testator by first paying his debts, and then hislegacies, as far as the estate should extend or the law should charge her,and that she would well and truly execute the office of executrix, etc. Such would have been the condition of the bond if she had been required to give one. If instead of being an executrix she had given a bond as administratrix with the will annexed, her obligation to pay the debts of her testator and make a faithful administration of his estate according to law and the directions of the will, would have commenced from the time of her qualification and the execution of the bond, and any devastavit she might afterwards commit would have relation to that date, and might be assigned as a breach of the conditions of the bond. The contract would begin from the execution of the bond, and there can be no difference between the obligations incurred by the executrix and the administratrix with the will annexed.

As the liability of the defendant then commenced with the qualification as executrix, she is not entitled to a homestead upon the authority ofEarle v. Hardie, 80 N.C. 177.

There is no error. The judgment of the superior court must be affirmed.

No error. Affirmed.

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