Whitbie's Administrators v. Frazier, 2 N.C. 317, 1 Hayw. 317 (1796)

April 1796 · North Carolina Superior Court

2 N.C. 317, 1 Hayw. 317

Whitbie’s Administrators v. Frazier.

If the husband dies before administration taken upon his wife’s eh uses in action, her administrator, and not his, is the proper per*' n to administer them : but the husband’s representative will be entitled to the surplus after payment of her debts.

Detinue. The mother made a gift of the negro in question to Sarah, the daughier, to take effect in possession after the death of the mother. Sarah married and died, and then the mother died. The husband surviving, and last of all the husband died, without taking administration to his wife. The administrator of Sarah now sues for the negro. It was objected, that the property In the negro passed into the husband upon the death of the wife, he being her next of kin ; that he was entitled to administration, and was not liable lomake distribution; and though he died before administration taken out, that cannot prejudice him with respect to any right he had as next of kin — that his w ife’s personal estate, not yet reduced into possession at her death, vested in him asa legacy, or as a distributive share,that w iligoto the representatives of the sharer; and that as this was a vested interest in the husband, his representatives succeeded to Iiis rights, and not the representatives of the wife: and therefore they, and not the representatives of the wife, are entitled to this action — and for this were cited 1 Wils. 168. 5Mt. 537. Lovel.73, 82, 85. Pre. ch. 21, ¿60. 3 P. Wil. 443. The court took time to consider, in order, as they said, that this cause might be specially made up for the further consideration of the Judges, should the objection appear upon further reflection to he of weight enough to raise a serious doubt; and after some days consideration they gave their opinion.

Per curiam

It is not necessary to make up the special, case ; this action was formerly brought by the administrator of the husband, and determined by two Judges to have been improperly brought for that very reason_ One of the court now' present, on hearing this matter first moved, was inclined to think the action should have been in the name of the administraior of the hm-band, but upon further consideration, he is conv irir.ed of his mistake; and it was occasioned by not distinguí- ing between th> right of property, and tilt, right of ae inn. It is a true position, that the property of this negro was vested in tbe representative of tin husband, in the man er ns a legacy is vested in tbe legatee, or a distributive sitare in one of the next of kin,.who if he dies will trau-mit his share to his representative — in this case the husband was entitled as next of kin, and not ás husband, and by his death hails transmitted the right lie. had to his repi-esentame — that was only a right to demand the negro of the administrator of the wife after debts ¡aid— No person is entitled to receive this negro in the first, instance,but only as administrator of the w iff, to the end that her property in the bands of her administrator may be subjpcr to the payment of all just debts contract* d by her duni sola — the hesband was indeed entitle*' ¡o h- is ;• ad-mini"!. at'*r, but l*e did not apply : another might be appointed- who will be a trustee for the husband as to all that part of she wife’s ohoses in action, that such administrator shall recover or get in above what will satisfy her debts. This administrator is entitled in the first place to the possession of all her dioses in action, and is accountable to the husband, or the representatives of the husband’, in the same manner as he would be accountable in other intestacies to a distributive sharer and his representatives — -so it would In* of no use to snake up this special case, all the Judges of the State being of this opinion — the other Judges now upon the other circuit, having decided this very case before; and the tw'o now present, being of the same opinion. So *hePlaintiff bud judgment. The court relied upon Co. Litt. 351. H. B. Re. 538.

Note.— Vide Toller’s Law of Executors, 116 & 217, where it is ssid that .¡though it was formerly held that if the husband-dieis before taking’ out administration upon his deceased wife’s choses in action, his representativo will b*. entitled to administer them, yet, it is now established that her next of kin in such case is enlitb-d to the administration, bul he will h. accountable to the husband’s representative for the resume of the property after payment of debts &c. 1 P. Williams 382. Har & But. Co. Litt 351, a. note 1. 4 Burn. Eccl. Law, 235. See also Neale’s Adm’r. v. Haddock, Con. Rep. 75.