M'Kinzie v. Smith, 3 N.C. 372, 2 Hayw. 372 (1805)

Nov. 1805 · North Carolina Superior Court

3 N.C. 372, 2 Hayw. 372

M’Kinzie vs. Smith.

rip HIS was a bill in Equity for an injunction ; and one questi- •*- on arising upon the bill and answer, was, whether as Smith, the executor of Rowan, whose daughter M’Kinzie married, had delivered over his share of the estate to M‘Kir>zie and had been, since sued for debts of Rowan, which were recovered against him, was entitled to charge M’Kinzie with interest upon the value of the property so delivered over. M‘Kinzie had given a bond to refund not exceeding the value he had received. Smith, in making up his account, had charged him with the value of the property delivered over, and the interest, and given him credit for the payments made by M‘Kinzie, and the interest thereupon ; and insisted, that if the balance was under o.r not exceeding the penalty of the bond, he had a right to issue his execution for the penalty dischargeable by such balance.

Mr. Gaston argued for M^Kinzie, that Smith was accountable to creditors for no more than the value of the property delivered over to a legatee.

Haywood, e contra,

argued that Rows» died before 1789, ' and a delivery over before debts paid, was no legal administra tiun — -If he hí-'l Mpttbe property, be would have been answerable for tile value and interest, or the p!outs; anil delivering over the properly illegally, cannot surely exempt him horn 'i burthen, which, but for that, lie would have beta subject to; nor take frora the creditor his interest, which, but for that, ho might have recovered. If toe creditor can recover interest, then either Smith, the executor, or M'Kii.zi.,, the legatee, musí pay it t «Hid surely the legatee who received the profits,ought to pay it rather than the executor, v;ho gets nothing for the pains Le has taken, but the trouble of ?h;c and other law fuiio.

Loche, Judge,

however, rr; cf c, contrary opinion, ando ltd he ought not to be charged with interest, for that he was not bound to refund exceeding the value he had received • s.i.l it:dependent of that, an executor delivering over the property, was liable to creditors for the value, and no more,

N.B. In the suit of Hostler’s executors vs. Smith, executor of Rowan, defendant, pleaded, that the property tiras delivered over in 15T83, to MfK'uisie and others — —and Loche derided, that such delivery over did not amount to an adruHiistnuton ; ■máúie more so, as Smith had notice of Hostlei’s debt-