Wynns v. Alexander, 22 N.C. 58, 2 Dev. & Bat. Eq. 58 (1838)

June 1838 · Supreme Court of North Carolina
22 N.C. 58, 2 Dev. & Bat. Eq. 58


The Acts of 1723 & 1791, Bov. Star ch. XLVI. §5. 10 & 11, directing the-mode of selling the personal property of descedents, is merely directory and does not affect the power of sale vested in the executor by the common law.— It should however always be followed, as in the absence of fraud, it is a com- "• ■ piete protection to the executor.

The case made by the' pleadings and proofs was that Peter Wynns by his will gave to his wife Elizabeth Wynns a negro woman for life, with remainder to his children — that his executors exhausted all his assets in the payment of his debts, excepting that slave and a horse — that they then settled their accounts with the county court, when it appeared that the sum of £181, 14. 1., was still due for outstanding debts of the testator — that the widow agreed with the executors for the purchase of the slave and horse, upon the terms of her paying those debts — that- this agreement was perfectly fair, and the sum agreed to be paid was a full price for the slave and horse — that the widow con-t tinued in possession of the slave for many years, and gave„ of her issue, several other slaves to the defendants, who were her children, or who had married her daughters. — The plaintiff, a son of the testator, filed this bill claiming an in*59terest in this slave and her issue, and praying to have his share of them assigned to him.

T„h®case op Cannon ®. Jenkins, v.'oa?4Z7,^p-aproved-

W. J. Alexander for the plaintiff

Caldwell for the defendants.

.Daniel, Judge,

after stating the facts as above set forth, proceeded as follows : — It appears to us that the title to the slave, which at law was in the executors, was bona fide, and for a full consideration transferred by the- executors to the' widow. The act of Assembly (Rev. stat. 275) provides, when the estate of a person deceased shall be so far indebted, that the debts cannot be discharged by the moneys on hand, or by the sale of the perishable commodities, then it is and shall be the duty of every executor or administrator to sell the goods and chattels at public sale for the most that can be got for them, after public advertisement, first obtaining an order of the court of the county for that purpose. The executor or administrator might before the passage of the act, have sold bona fide the goods and chattels of the testator or intestate. The Ipgal title was in him, and an honest purchaser from him, would always have acquired a good title. The common law on this subject, is not repealed by this act. The statute is only directory, which however it would be well always to follow, for if the executor or administrator fails to obtain as much at private sale, as would have ir been got at public vendue, he or they would be bound to make good the deficiency out of their own pockgts. Cannon v. Jenkins, 1 Dev. Eq. ca. 427. We are of opinion from full examination of this case, that the plaintiff has no ground to entertain this bill, and that the same must be dismissed. Costs are not’given to the defendants because the purchase not having been made in the mode directed by the act of assembly, the defendants ought to bear a share in the ex- , pense of investigating the good faith of the transaction.

Pee Curiam. Bill dismissed.