Lancaster v. McBryde, 27 N.C. 421, 5 Ired. 421 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 421, 5 Ired. 421

SAMUEL LANCASTER, EX’OR. &c. vs. LYDIA McBRYDE.

When the probate of a will has been obtained in a sister State, ahd is authenticated as the laws of the United States direct, it is in such an authentic1 form as to supersede the necessity of a probate in the courts of this State, and such an authentication may be given in evidence to sustain a suit.

Where there were two eo-executors, and one of them died, and afterwards the other died, the executor of the last may recover at law from the executor of the co-executor, who first died, a bond belonging to the estate of the first testator.

The eases of Helme v. Samders, 3 Hawks, 563, and Brotíen v. Baiemam, 2 Dev. Eq. 119, cited and approved.

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

This was an act of detinue, brought to recover possession of a bond, which it was alleged belonged to the estate of William Martin, of whom the plaintiff was the executor, being the executor of Atlas Jones, who was the surviving executor of the said William.

The case is as follows. William Martin died in the year having previously made and published in writing his last will and testament, and therein appointed Atlas Jones and Archibald McBryde, his executors. They proved the will. Archibald McBryde died in the year and by his will appointed the defendant, his executrix. Atlas Jones survived him, and having removed to the State of Tennessee, there died in the year and after the institution of this suit. The bond in question, and for detinue of which the action is brought, is a part of the assets of the estate of William Martin, and came to the hands of Archibald McBryde, and, after his death, was taken possession of by the defendant as his executrix. The bond was demanded by Atlas Jones of the de--fendant and upon her refusal to deliver it; this action in deti-nue was brought. Pending the suit, Atlas Jones died, and-a motion was made to make Samuel Lancaster, alleged to be executor, the plaintiff. In support of the motion, two papers were produced; the on'e, purporting to be a copy of the jas¡; wqj anq testament of Atlas Jones from the records of the Court of Pleas and Gtuarter Sessions of Madison county, in the State of Tennessee, and the other, a copy of the probate of the said will and of the qualification of Samuel Lancaster as the executor thereof. To the introduction of these papers as evidence, several objections were urged ; first, that the paper, called the copy of the will, did not appear to have been proved in any court in Tennessee, not having any certificate of probate endorsed thereon; and that it would receive no aid from the other papers, as they, in no way, referred the one to the other, and if they were so connected, they were not so authenticated, as to authorize the court to consider them as evidence. It was admitted, they had been transmitted to the counsel of Atlas Jones by his son, and were contained in the same envelope. To each of these papers is attached a certificate, under the seal of Madison County Court, and attested by a person subscribing himself “Jas. D. McClelland, Clerk,” and to each a certain certificate, signed by Wyatt Mooring, as chairman and presiding Justice of the County Court of Madison County, in which, he certifies, that “James D. McClelland, whose hamo appears to the foregoing certificate, is now and was at the time of signing the same the Clerk of said Court. That the court is one of record and the attestation in due form of law.” The presiding Judge overruled the objections, and Samuel Lancaster, as executor of Atlas Jones, was made plaintiff and permitted to prosecute the suit.

Mendenhall, for the plaintiff.

Strange, Winston and J H. Haughton for the defendant.

Nash, J.

We perceive no error in this action of the court. It is objected, that the papers are not attached to each other, nor do they so refer to each other, as necessarily to connect them. It would have been more satisfactory, if the papers had been so connected, but we know of no principle of Taw requiring it and the circumstances accompanying them ciently, wc think, connect them, to enable us to see that they do mutually refer to the same transactions, and prove that this is a true copy of the will of Atlas Jones and its probate. It is further objected that we have no evidence, that Wyatt Mooring was the presiding magistrate of Madison County Court; as the record states, there were other magistrates on the bench. It is sufficient for us, that the papers are authenticated in one of the modes required by the act of congress. We cannot require more evidence of the fact, than the law demands, and, in the absence of all contradictory testimony, impeaching its truth, it would have been a matter of fact to be decided by the presiding judge, and which could not be reviewed by us. It is further objected, that before Sam’l Lancaster could be permitted to carry on the suit, as the executor of Atlas Jones, the will of the latter ought to have been proved in some competent County Court in this State, and letters testamentary issued to him here. In the case of Helme against Saunders, 3 Hawks. 563, the Court decides, that when a probate is obtained in a sister State, and is authenticated as the laws of the United States direct, it is, under the Constitution of the United States, in such an authentic form as to supersede the neces^ sity of any probate in the Courts of this State, and such an authentication may be given in evidence to sustain a suit, and was certainly sufficient to authorise the Court to make Samuel Lancaster a party plaintiff, as the representative of Atlas Jones,

It is contended, that the action cannot be maintained, and that the only redress, open to the plaintiff, was a suit in Equity, to call the defendant to an account, for the assets of William Martin, which came to her hands as executrix of Archibald McBryde. No authority has been cited for this position, and, indeed, it is admitted none can be found. In support of it, however, it is said it would expose the defendant to great litigation and much cost. We cannot perceive how this can be. She is not liable at law to the demands of the creditors of William Martin, for she is not his representative. If no case can be found to sustain the defendant’s objection, the cases ar.e numerous which, on principle, sustain the action. Co-execu-at ^aw) are regarded as one person, all having a joint and entire authority over the whole property of their testator.— Wentworth's office of Ex. 213, 2 Williams on Ex. 620, and upon the death of one, the whole power and authority rest with the survivor, although the deceased executor may have left an executor. Flanders and Clark, 3 Atk. 509, 2 Williams on Ex. 623. It is the duty oí the surviving executor to take possession of the personal estate of the deceased, and this bond, it is admitted, forms part of the estate of William Martin. He alone can maintain an action at law for the money or the property, and he alone is answerable to the creditors. Nor, in Equity, can a creditor sue the surviving executor and the representative of the deceased executor, except upon the ground of fraud and collusion. Brotton v. Bateman, 2 Dev. Eq. 119. It is a general rule of pleading, that, when one of several parties, having a joint legal interest, dies, the right of action survives, and the action must be brought in the name oí the survivor. The representative of the deceased joint party can not be joined. 1st. Chit. on pleading 12. Atlas Jones and Archibald McBryde, as executors of W. Martin, had a joint legal interest in the bond in controversy; and, on the death of McBryde, that interest survived to Atlas Jones. The defendant could not maintain an action on it against the obli-gors. Jones alone could do that, and he, of course, was entitled to its possession. It is true, for the reason before given, one executor cannot maintain an action at law against his co-executor, and this case does not raise the question. The plaintiff and the defendant do not jointly represent William Martin ; the former is the sole representative.

These were the only points, pressed in argument before us, but as the counsel claimed another, which is stated in the case, it is our duty to examine and decide it. When the executor of Atlas Jones was made a party plaintifl, the defendant was permitted to plead, since the last continuance, that one Kenneth McCasskill had by a decree in Equity, recovered from her, as executrix of Archibald McBride, the sum of $ 2,500, as money due from the estate of William Martin, and that she retained this bond as assets of Martin’s estate, purchased by her for the benefit of her testator’s estate. The case states, that the suit of McCaskill was brought by him against Atlas Jones and Archibald McBryde, for an account of money received by them as his agents from the estate of Martin, and that he had recovered the sum mentioned in the plea, of which the defendant had paid an amount equal to the bond in dispute. The Court was requested to charge the jury, if they believed the testimony, they ought to find for the defendant. This instruction was refused, and, certainly, with great propriety. The decree was obtained against the defendant, Jones having in the mean time died without any representative in this State, not as the representative of William Martin, but as the executrix of A. McBryde, one of the agents of McCasskill, in which character the money had been received by him and Atlas Jones. Martin’s estate was discharged from the claim. The money, then, which the defendants paid under that decree, was not paid by her, for and on account of Martin’s estate. She can of course, have no claim, in this Court, to hold the bond in dispute to answer for it, against the legal claim of the plaintiff.

Atlas Jones was the surviving executor of William Martin; the bond in dispute is a part of the estate of his testator, in the hands of the defendants, having no legal claim to its possession ; the action after a demand was rightly brought and the plaintiff was entitled to a verdict.

We perceive no error in the charge of the presiding Judge.

Pee, Curiam, Judgment affirmed.