Taylor v. Wilson, 27 N.C. 214, 5 Ired. 214 (1844)

Dec. 1844 · Supreme Court of North Carolina

27 N.C. 214, 5 Ired. 214

RICHARD W. TAYLOR vs. ELIZABETH WILSON, ADM’X, &c.

A. by a deed under seal “gave and granted unto B. to take effect at my (the grantor’s death) the sum of five hundred dollars, to have, hold, and enjoy all and singular the said sum of five hundred dollars to the said B. his executors, &c., to the proper use and behoof of the said B., his executors, &c.” And then -warranted the said sum of $500 to take effect at his death to the said B., his executors — HeW, first, that this is not a remainder in a personal chattel, after a reservation of a life estate, no particular chattel being designated.

Secondly, That an action of covenant on this instrument against the adminis-tratrix of A. was well brought, though debt would also have lain.

Debt and covenant are concurrent remedies for the recovery of any money demand, when there is an express or implied contract in any instrument under seal to pay it.

Appeal from the Superior Court of Law of Northampton County, at the Fall Term, 1844, his Honor Judge Caldwell presiding.

This was an action of covenant on the followinginstrument executed by the defendant’s testator to the plaintiff:

“ To all to whom these presents shall come : I, William Wilson, of the county of Northampton, and State of North Carolina: Know ye that I, the said William Wilson, for, and in consideration of the natural love and affection which I have and bear unto my friend, Richard W. Taylor, of the county and State aforesaid, and for divers other good causes and considerations me hereunto moving, have given and granted, and by the presents do give and grant unto the said Richard W. Taylor, to take effect after my death, the sum of five hundred dollars, to have, hold and enjoy all and singular the said sum of five hundred dollars aforesaid, unto the said Richard W. Taylor, his executors, administrators and assigns, to the proper use and behoof of him the said Richard W. Taylor, his executors, administrators and assigns forever. And I, the said William Wilson, all and singular the aforesaid sum of five hundred dollars, to take effect at my death aforesaid, to the said Richard W. Taylor, his executors, administrators and assigns against all persons whatsoever, shall and will warrant and. forever defend by these presents. In witness whereof, &c.” Dated the 23d of January, 1837, and signed and sealed by William Wilson.

The said Wilson died sometime before this suit was brought, having made a will in which he appointed an executor, who refused to qualify, whereupon the defendant was appointed administratrix with the will annexed. On the trial it was urged, that no recovery could be had on the instrument in question. The jury, under the instructions of the court, returned a verdict for the plaintiff. Judgment having been rendered pursuant to this verdict, the defendant appealed to the Supreme Court.

B. F. Moore for the plaintiff.

Bragg for the defendant.

Daniel, J.

This is an action of covenant on the deed mentioned in the case. It is very clear, that, in many cases, a liability may arise against the executor or administrator, after the death of the testator or intestate, upon a contract made in his lifetime, although the executor or administrator be not named therein ; for the executors or administrators of every person are implied in himself, and they are liable upon any contract of the deceased, although they are not named, when the contract is not personal to the testator or intestate; thus they are liable upon a bond or note payable subsequently to the death of the testator or intestate. Willms. on Ex. 1060. Toller, 463. The objection raised by the defendant, that it is a remainder in a personal chattel, after a life estate reserved to the donor, and therefore void according to the rules of the common'law: it may be answered, that it is not any specific chattel, as a particular horse or a flock of sheep, &c. it is an obligation, a chose in action, to pay $500 in money, or in the currency of the country; it has no ear-marks, and therefore it is not within the rule supposed. Secondly, it is said, that debt and not covenant is the proper remedy, if it is to be considered as a contract for money. The answer we give is, that dbt and covenant are concurrent remedies for the recovery of any money demand, when there is an express or implied contract in any instrument under seal to pay it; but in general, debt is the preferable remedy, as in that form of action the judgment is final in the first instance, if the defendant do not plead; see 2 Stephens N. P. 1057. The judgment must be affirmed.

Per Curiam* Judgment affirmed.