Huson v. McKenzie, 16 N.C. 463, 1 Dev. Eq. 463 (1830)

Dec. 1830 · Supreme Court of North Carolina

16 N.C. 463, 1 Dev. Eq. 463

John Huson et al. v. Joseph McKenzie et al.

From Lincoln.

A mvd’tor of an 'xecutov, who lias <akc:n a sccuriiy for his debt, upon the assets ni the testator with notice, cannot hold them against the letrite. s.

A siü vo: ,¡e¡, of mal-adimnistrntion cannot be made the foundation of a amt agr.inst an executor j but the whole administration musí bo inquired hilo, and if the frame of tlie bill doc3 not permit this, it must bo dismiss: d.

A bill brought by some of the persons entitled under a residuary clause in a wiii, without making tlie. others D'.iend.nits, or accounting for tlie omission, cannot be supported.

The bill was filed by three of the infant children of fñ,Ilium Mason. It stated, that their father, by his will, devised as follows: “ Í will that my wife, Mary Mason, <s fell all have such part of my latid, as she, with her chil- ** dren and negroes which are left to her, can attend tin;s der crop annually, during her natural life or widow-u hood, and the balance of cleared latid I will that it he si rented out annually by my executors, until ray children come of age to take it into their own possession. As u to my negro woman Tempe, and my two negro boys,, 45 Stephen and Leo, my will is, that these negroes be hired iS out annually, and the. monies arising from their hire., (S be appropriated to schooling my children, or as much 4i of it as may be necessary to give them a good English ct education, and the balance of the said biro (if there he Si any) shall be reserved to meet accidental occurrences ss (the death of slaves specifically bequeathed) if these should happen; if no such occurrence should arise Us iS call for a particular distribution of the above monies, * then, and in that case, my will is, that is be equally »'* divided among all my children- — arid Í will lint these «•« negroes directed to be hired out, be hired until my « youngest child comes of age ; after this., they shall be ^ equally divided among all my chsMyeuN That aO flip executors, except Mary Huson, the mother of the Plaintiffs, refused to qualify, and that she alone proved the will — that .she wasted the estate, and married one Friddle, who was made a Defendant — that Friddle executed a lease to McKenzie for the land, and also hired to him the two male slaves mentioned in the will, as a security fora debt — that this lease and hiring were in fraud of the trust reposed by the testator in bis executrix, the wife of Friddle, and that the Plaintiffs did not receive from the rents of the land and the hire of the negroes, that education which their father designed they should have, as it was entirely consumed in paying Friddle’s debt to McKenzie. The prayer was, that the land and slaves might be surrendered by McKenzie, and rented and hired by the Master, for the purpose of educating the Plaintiffs.

The will of Mason Huson was filed as an exhibit, and it appeared from it, that he left six children, and his wife enceint with another, to five of whom, and the one unborn, he had bequeathed the residue of his estate, as a, daughter, Elizabeth, had been provided for by her grandfather.

The Defendant, McKenzie, who alone answered, admitted the conveyance by Friddle, as charged in the bill, hut insisted that he was not accountable for a waste of the assets committed by Friddle or his wife.

The case was submitted by Gaston, for the Plaintiffs.

No Counsel appeared for the Defendants.

Ruffin, Judge.

— The bill is filed for the purpose of setting aside a conveyance, made by Friddle and wife, to the other Defendant, on the ground, that the executors fraudulently conveyed, in payment of a private debt, the estate of their testator, which they held by the express terms of the will, in trust for the children of the testator. The Court has looked into the will, and the answer of McKenzie; and it thence appears plainly enough, that the deed cannot stand, unless upon the general accounts of the esuite, debts of the testator, ora b- lance due the executrix, shall be found to justify such a disposition of the property as has been made. Upon the merits, as now indicat"d, there would he no hesitation in decreeing the relief prayed. But the bill itself is so fatally defective, that, nothing can be made of it. The will 1 arries the rent; of the lands, and the negroes, and their hires and issues, first to the education of the children, and then into the general residue of the estate, after making up such losses as might occur in the legacies by the death of the slaves, specifically bequeathed ; and the will shows five children, besides Elizabeth (who is excluded from the residue) and the unborn child of which the testator thought, that his wife might be enednt. The bill is brought, by only three of the children, without making any of the others parties, or assigning a reason for the omission : and it prays simply, that this conveyance may he declared void, and the estates conveyed to some other trustee.

It is impossible, that isolated acts in the course of an administration can be made the subjects of a suit. Their merits cannot, be determined, without going into the whole estate, and there is nothing it! the pleadings to cover such an extended inquiry. The Court cannot permit litigation to be multiplied by splitting upa mal-administration into all its particulars, and making cadi the subject of a suit. The whole forms hut one trust and subject of litigation. Parties, under such a practice as is attempted, would be ruined by costs, and the Court harassed continually by repeated investigations of the same matter. Besides, all the parties in interest must be before the Court. How can we declare the conveyance void, and deprive the executors of the trust, and appoint anu’her trustee, without knowing the wishes of the other leg iters? If indeed a formal party alone were waiting, the Court might overlook it, or send the case hack, to have the de-lect supplied. But here the cause is brought to a hear-. jng, upo» a bill ho entirely founded on a misconception. &u<i defectively framed, that it is incapable of amend" ft;( :-t, without making a new case altogether.

Per Curiam.

— Decree, that because it appears from the will of Mason Huson in the pleadings mentioned, that there are besides the Plaintiffs other residuary legatees, who by said will are entitled to shares in the testator’s estate, and particularly in the portions of it in controversy in this cause, and they are not. made parties to the suit, nor any reason assigned for the omission 5 and be» cause no general account of the testator’s estate, is sought in the bill, or can be taken under it, the bill is dismissed with costs. But declare, that this decree is without prejudice to any proper bill to be brought by the Plaintiffs for such gem-ral accounts, including the subject matter of the present bill.