Roanoke Navigation Co. v. Green, 14 N.C. 434, 3 Dev. 434 (1832)

Dec. 1832 · Supreme Court of North Carolina

14 N.C. 434, 3 Dev. 434

The Roanoke Navigation Company v. John H. Green, Ex'r. of Solomon Green.

Where a testator in the event of the death of his executor, directed the County Court to appoint some person to administer his estate, the executor of the first executor, is not the executor of the first testator.

This was a scire facias, which recited that the plaintiffs had obtained a judgment against Solomon Green, as the executor of William Green-; that Solomon Green was dead, having made a will, whereof he appointed the defendant executor, and praying to have execution upon that judgment, against the goods of the defendant’s testator.

Plea — In substance, that although the defendant’s testator was the executor of William Green, that the defendant had never administered any. of the chattels of William, neither was the defendant the executor of William ; because, that William, by his will, directed the Court of Pleas and Quarter Sessions of the county of Warren, tvhere be resided at the time of bis death, in case of the deeth of Solomon, bis executor, before be liad fully ad- , , , , ministered, to appoint some suitable person to take charge of, and administer the residue left unadministered by his executor. And further, that William, by bis will, gave to the person thus to be appointed by the County Court, the same powers as to such of bis estate as should be so unadministered, as be bad given bis executor, the defendant’s testator.

T?ie ^ &nmbur< v firmed,

Replication' — Admitting the plea, but averring that the defendant was executor to William, because the , County Court had never appointed any person to administer the goods of William, unadministered by Solomon.

Demurrer and joinder — His Honor, Judge DaNiex, on the last Spring Circuit, at W; rren, overruled the-demurrer, and gave judgment for the plaintiffs, from, which the defendant appealed.

Gaston and W. H. Haytv/md, for thedefendant.

Badger, for the plaintiff,

relied upon Gran bury v. Mhoon, (JinU 1 vot. j)< 456 )

Henderson, Chief-Justice.

The affirmations of the-court of probate cannot be controverted, in this case, the court affirms, that John H. Greeen is the executor of Solomon Green, and that Solomon, was the executor of William;but it does not affirm, that John is the executor of William, That is an inference, drawn by the law,, in certain cases; as where- the executor'of the first testator, was sole executor, or surviving executor; but not where the first testator by li is will, declared that the executor of his executor should not execute his will, as I think William did in this case, by appointing.' some other person to execute it, upon the death of Solomon. A testator may a ppoint that his executors shall act jointly, or in succession. If these facts do not appear, they may he introduced by plea, as in the present case, and I adhere to the opinion given in Grimbnrij v, Mhaati % that a copy of the will does not necessarily ac~ company the letters testamentary, and even if they did, la this case, it would only he again putting that on the record which already as fully appears, as if the probate had been set out at large, that William Green directed some other person, except the executor of Solomon to execute his will. I think the demurrer should be sustained, and the judgment reversed.

Per Curiam. — Judgment reversed.