State ex rel. Henderson v. McAleer, 27 N.C. 632, 5 Ired. 632 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 632, 5 Ired. 632

THE STATE UPON THE RELATION OF HIRAM HENDERSON vs. OWEN McALEER AND OTHERS.

The refunding bond, which executors and administrators are authorized to take from legatees or distributees, are taken solely for the benefit of creditors.

Therefore an executor or administrator, who has paid to a legatee or distribu-tee more than he was entitled to, cannot for his own use recover the excess so paid, by an action on the refunding bond given by such legatee or distri-butee.

Appeal from the Superior Court of Law of Caswell County, at the Spring Term, 1845, his Honor Judge Caldwell presiding.

This is an action of debt on the defendant’s refunding bond. The relator was the executor of the last will .of Joseph Henderson, deceased ; he paid to several of the legatees their legacies (and among others were the defendants), and took refunding bonds, upon an understanding, that if the assets left in his hands should not be sufficient to discharge the outstanding debts of the testator, and also to discharge some outstanding pecuniary legacies, then the said receiving legatees should refund, &c. The relator afterwards had to pay said-debts and pecuniary legacies ; and as that which was left in his hands, and then supposed to be sufficient to discharge the same, (to wit a bond) proved of no avail; he demanded contribution. He then filed a bill in equity against the present defendants and others, to whom he had first paid their legacies, to force them to refund to him their proportional parts of the amount so paid by him; and there was a decree for him ascertaining the proportions against the present defendants. The breach which the relator has assigned of the condition of the present bond is, that the defendants have not paid to him the several sums decreed against them as aforesaid. The Judge was of opinion, that the plaintiff could not recover on such an assignment : and he was nonsuited, and then appealed.

Kerr and Morehead for the plaintiff.

Norwood for the defendants.

Daniel, J.

We concur with his Honor, that the decree could not be given in evidence, on any breach that could be assigned by -the relator on this refunding bond. The act of Assembly, Rev. Stat. ch. 46, sec. 18, declares, that a refunding bond shall be and- enure to the sole use and advantage of the creditors of the testator or intestate. The payment by the executor was his voluntary act, and, if he had chosen, he might have taken a bond to himself, as an indemnity against future demands against him beyond his assets. He cannot have recourse to the refunding bond required by the statute; •for, if'he could, he might exhaust it and thus deprive other creditors of the benefit, which the act gives exclusively to the creditors.

Per Curiam, Judgment affirmed.