State ex rel. Burch v. Clark, 32 N.C. 172, 10 Ired. 172 (1849)

Aug. 1849 · Supreme Court of North Carolina

32 N.C. 172, 10 Ired. 172

THE STATE ON THE RELATION OF BENJAMIN BURCH & WIFE vs. NATHAN CLARK & AL.

Ail action upon the administration bond of an administrator, for a distributive share belonging to a married woman, must be brought on the relation of the husband and wife, though the husband -may have assigned his wife’s Bhare to a third person.

The cases of Wright v. Lowe, 2 Murph. 316, and ot Dozier v. Muse, 2 Haw. 482, cited and approved.

Appeal from the Superior Court of Law of Caldwell Count}', at the Spring Term 1849, bis Honor Judge Bailey presiding.

This was an action of debt, upon the administration bond of the defendant and his sureties, to recover the distributive share of the intestate’s estate. The wife of Benjamin Burch, one of the relators of the plaintiff, was a distributee of Mabel Clark, and entitled to one seventh part of the sad estate. The evidence was, that Benjamin Burch, the husband, sold his wife’s share in the estate of Mabel Clark to the witness introduced; that, not paying for it, he sold it to Robert Smith, and he, Robert, agreed to pay Benjamin Burch the amount the witness agreed to pay. The jury found a verdict for the plaintiff and the sole question is, whether the suit is properly brought upon the relation of Benjamin Burch and wife Mary, to the use of Robert Smith, who was the assignee of Benjamin’s interest in the said estate.

The Court, being of the opinion with the plaintiff, gave judgment accordingly, and the defendants appealed to the Supreme Court.

Guión, for the plaintiff

Gaither, for the defendants.

Nash, J.

The only question is, whether the action was properly brought. The feme relator is one of the next of kin of Mabel Clark, and entitled to a distributive share of her estate. She and her husband assigned their interest to one John Smith, an 1 the action is brought on their relation to the use of Smith, on the administration bond, against the administrator and his sureties. On the part of the defendants, it is alleged the action ought to have been brought on the relation of Smith. We agree with the Court below, that it is properly brought. To sustain the defence, several cases have been referred to ; none of them we think have that effect. In Wright v. Lowe, 2 Murph. 336, the petition was filed in the County Court, and the objection was to the jurisdiction. The decision is, that the County Court had jurisdiction, and that the purchaser of a distributive share may file a petition in his own name, it being in the nature of a suit in Equity. The case of Dozier v. Muse, 2 Hawk. 482, was in Equity, and decided, that, though a distributive share of a, feme covert in property, not divided, could not be levied on at law, the husband might assign it, so as to bind the wife. The action in this case is at law, and the question is, as to the legal rights of the parties. The legal title being in the relators, and not assignable at law, they are properly made parties. In Equity, when the assignment by the husband of the wife’s chose in action is absolute-and unconditional, leaving in the assignor no liability, the assignee may sue without making the assignor a party. Thompson v. McDaniel, 2 Dev. & Bat Eq. 463. But if any interest remain in the assignor, he must be a party. We think, therefore, that the action was properly brought, and that it is not affected by the death of the husband, but survived to the wife. Hardie and Cotton, 1 Ire. Eq. 61.

Ter Cursam.

'Judgment affirmed.