Drumright v. Jones, 39 N.C. 253, 4 Ired. Eq. 253 (1846)

June 1846 · Supreme Court of North Carolina

39 N.C. 253, 4 Ired. Eq. 253

JONES DRUMRIGHT & AL. vs. ROBERT JONES & AL.

Where an executor is in possession of a sum of money, to which his testator was entitled for the life of another, who is still living, a Court of Equity will not compel the executor to give security for the payment of the amount 'at the expiration of the life-interest, unless he be insolvent or in failing circumstances, or, from some other good cause, there is reason'to fear the money will be lost.

Cause removed from the Court of Equity of Person County, at the Spring term, 1846.

The following facts appear from the pleadings.

Henry Baily died in the year --having made and published in writing his last will and testament, which, after his death, was by thé surviving executor, James Drumright, one of the plaintiffs, duly proved before the proper tribunal. In the said will is the following legacy : “ I give and bequeath to my wife Mary, one thousand dollars, either in cash or property belonging to my estate, to that amount, to be taken by valuation ; also one negro girl named Mary and a good feather-bed and furniture ; to hold the above named property, money, &c. during her life-time, and, at her death, to return to my estate and be distributed as hereinafter directed.” At the sale of the property of the testator, made by the executor, Mary Baily, the widow, purchased a couple of negroes, Billy and Joe, and it was agreed between her and the executor, that she should hold them, as a part of the $1,000 legacy, at the price at which she should bid them off, as a convenient mode of valuing them. The two negroes were bid of for the sum of $440 00. The widow subsequently married Robert Deshazo, to whom the executor of Baily paid the balance of the pecuniary legacy in money, and took his receipt for the whole $1,000. Robert Deshazo is dead, having made his will and therein appointed Robert Jones, one of the defendants, his executor, who has caused it to be duly proved. By his will Robert Deshazo made provision for his wife, Mary, who is one of the plaintiffs, and from which she duly dissented, and gave the rest of his estate to the other defendants. The bill charges, that the legacy received by the plaintiff, Mary Deshazo, from the estate of her first husband, Henry Baily, passed into the possession of her second husband, Robert Deshazo, and is now in that of his executor, the defendant, Robert Jones, who holds it for the life only of the said Mary; that Mary Deshazo, having dissented from her husband’s will, is entitled to a third part of his personal property, the said husband having left no child — -the other legatees in his will not being such ; that they live beyond the limits of the State, and threaten to carry the property to their place of residence. The bill prays that the executor, Jones, may be compelled either to deliver over to the plaintiff, Drumright, as the executor of Henry Baily, the whole of the property constituting the legacy of the plaintiff, Mary, taking a bond to pay over to him the interest of the money and the hire of the negroes annually, or that he give bond and security, that the said property shall not be carried beyond the limits of the State, and that it shall be forthcoming on the death of the said Mary, and it further prays that he may come to an account with and pay over to her, her part of the estate of the said Robert Deshazo, and for general relief

The answer admits the facts as set forth. The executor, Jones, states, that two years have not elapsed since he administered, and that there are a few debts still to pay — submits to an account and is willing to abide by and perform any order or decree that may be made.

The other defendants deny that Jones, as the executor of Deshazo, is bound to account with the plaintiff Drum-right, as executor of H. Baily for any part of the property ¡or money lent to the widow Mary, or is bound to give any security for its forthcoming on her death.

E. G. Reade, for the plaintiff.

Venable, for the defendants.

Nash, J.

The case is before us on bill and answer, and the only contest is, as to the title to the $1,000 legacy, the negro Mary, and the negroes purchased by the plaintiff, Mary, at the sale of the property of her husband, H. Baily. There can be no doubt that under the will of II. Baily, his wife Mary took but a life estate in the property bequeathed her, and that upon her marriage with Robert Deshazo and his receipt of it from the executors, whatever legal estate was in her vested in him and that he holds it as she did for her life. In the hands of Jones, the executor of Deshazo, it constitutes a part of the estate of his testator, and to be held by him as he held it. There is no controversy, as to the power of the Court, at the instance of a person entitled to the ulterior interest of personal property, when a particular estate is caiwed out, to cause the immediate possessor to give security for its forthcoming — at the termination of the particular estate — and upon a proper case made out, it is the constant practice of the Courts to do so. But in this, it is the opinion of the Court, that a case, calling for the exercise of this power, is not stated in the bill. It is not alleged that Robert Jones, the executor of Robert Deshazo, is insolvent or in failing circumstances — nor is any fear expressed on that ground. He possesses the property, as his testator did, for the life of Mary Deshazo, and, upon her death, will be bound to have it ready to deliver over to the representatives of Henry Baily. It is his business then, to see that it is secure before he parts with its possession.

At the sale of the property of Henry Baily, the widow, Mary, purchased two negroes, Betty and Joe, and it was agreed between her and the executor, that they should go in part discharge of the pecuniary legacy’. After-wards, upon her marriage with Deshazo, the latter gave to the executors a receipt in the following terms: “ Received from the executor of Henry Baily the sum of $1000 dollars, the amount of the legacy left my wife, Mary, according to the will.” The Court is of opinion, that notwithstanding the agreement between the widow, Mary, and the executor of Henry Baily, this receipt establishes that the $1000 legacy was paid by the executors and received by Deshazo, and that the absolute title to the negroes Betty and Joe vested thereby in Deshazo.

The plaintiff, Mary Deshazo, is entitled to an account of the personal estate of her husband, Robert Deshazo, and to claim her portion thereof; the answer of the executor not pretending that it is necessary to keep it in possession for the payment of debt.

There must be a reference to the master to state the accounts.

Per Curiam.

Decreed accordingly.