Anonymous, 2 N.C. 259, 1 Hayw. 259 (1795)

Sept. 1795 · North Carolina Superior Court
2 N.C. 259, 1 Hayw. 259


The action of account will not lie for a legatee against an executor, oi the executor of such executor.

Account. The jury had found a verdict for the Plaintiff, subject to the opinion of the court, upon th" question wh rher this action will lie against the executor of one, wiio as executor took the goods of the testator into his possession, and hired out the n-groes. &e. This suit was commenced by on;- of several legatees. In the argument of his case, were cited 3 Bl.Com.164. Reeves’s Eng. Law 391. 2 Reeves 168, 169. 3 Dyer 277. Per curiam, this action will not lie iu the present case. The writ of account lieth against a man as guardian, bailiff or receiver; and by statute, against the exerutors of such; hut ir lietn <iot against an yxeeiifo- wlc mak*s a profit of the estate of the deceased, nor against his executor--’ *260for the law hath provided other means to call an exec a to> to account, where all the legatees must join in one suit, and not each one of them barrase the executor with a separate- suit. There is not any authority to shew, that an executor was ever charged in account, as guardian ; whatever he. recovers is assets for the, whole estate, and not the particular property of any special legatee. There is no privity between the legatee and executor, which is essentially necessary to the support of this action. Co. Litt. 172. The executor does not act, by the appointment or choice, of the legatee, as is the case with the guardian ; but by the appointment of the leffatur; though the guardian shall have an allowance of all his reasonable costs and expeuces. Co. Litt. 89. And so it may be thought no inconvenience to the executor to be charged that way, it is convenient, in this, that he is chargeable thereby by each legatee whereas in the modes anciently prescribed in the cases of executors, they must al! join. K would not only be a perversion of terms, but a great wrong to the executor to charge him as baililf, who is liable to account not only fur the profits he actually made, hut for all such as he might have made by industry and care ; and as a receiver he ought not to he charged in this action, beca use tiie receiver is not to be allowed any expencea or charges which an executor may be by 1715, c. 48, s. 7.—So there was judgment for the Defendant.