Foscue v. Foscue, 22 N.C. 65, 2 Dev. & Bat. Eq. 65 (1838)

June 1838 · Supreme Court of North Carolina

22 N.C. 65, 2 Dev. & Bat. Eq. 65

ELIZABETH FOSCUE v. JOHN E. FOSCUE et. al.

A legatee may, after an assent by the executor, file a bill to obtain his legacy— especially where he has no testimony of the asseni, and the executor refuses to deliver it, and account for its profits.

The bill charged that Simon Foscue the elder, the father of the plaintiff, by his will bequeathed a male slave to her, and appointed Simon Foscue, the younger, his executor, who sued out letters testamentary, and duly assented to the legacy, but died before he had delivered the negro to the plaintiff — and appointed the defendant, John, his executor — that the latter refused to deliver the slave, alleging that Simon Foscue the elder, had, after the bequest to the plaintiff, made a deed of gift of the same slave to Dorcas Foscue, who was a defendant. That the plaintiff had brought an action of detenue for the slave against the defendant John, but had failed therein, because of the death of the only witness by whom she could prove the assent of Simon the younger. The prayer was for a delivery of the slave, and an account of the profits made by his labor.

The defendants demurred for want of equityj and at Jones on the last circuit, Nash, Judge, pro forma, sustained the demurrer and dismissed the bill, and the defendant appealed.

No counsel appeared for the plaintiff.

J. H. Bryan, for the defendants.

Daniel, Judge, —

After stating the substance of the bill proceeded as follows:

The legacy being specific, after an assent by the executor he was clearly liable at law to an action by the legatee. Because an interest in the specific legacy vests at law in the legatee upon the assent of the executor. 2 Williams on Executors, 1188. But, is the jurisdiction lost which this court certainly once' had over the subject ? We think not. Where the executor had assented to a specific legacy, and the legatee brought Trover and had a verdict, the executor filed a bill to enjoin him. Lord Hardwicke said, it would be very ext traordinary if a legatee must in every instance bring a bill in this court. Williams v. Lee, 3 Atk. 223. Intimating dearly that he might do so. Where the executor assented to a devise of a term for years, the assignee of the legatee entertained a bill in equity to be put in possession. Moon v. Blagrave, 1 ch. ca. 277, Ward on Legacies, 371. The executor in equity is but a trustee; this court must necessarily have the power to coerce him to a complete execution of the trust. The bare assent which will give a court of law jurisdiction will not at the same time deprive this court of its jurisdiction to see that the trust be completely executed In Jordan v. Jordan 2 Car. Law Rep. 409, the Supreme Court said, that the jurisdiction of equity over trusts, can be taken away only by showing a complete execution of the trust. Here there has not been a complete execution of the trust, because that required the executor not only to assent to the legacy, but to deliver the subject specifically; and also to account for the profits. As to the-other defendant, she is a mere volunteer; at least not a purchaser from the executor; and therefore her right in this court must depend upon the enquiry, which is the better original'title under the testator himself, that deduced under tñe will or that under the supposed deed ofgift. The plaintiff, we think, has stated á sufficient equity in her bill; the demurrer must be overruled with costs, and the defendant’s answer.

Pee Curiam. Decree Reversed.