Administrator de bonis non of M'Ilwinny v. Carraway, 4 N.C. 194, 1 Taylor 194 (1817)

July 1817 · Supreme Court of North Carolina

4 N.C. 194, 1 Taylor 194

ADMINISTRATOR de bonis non of M'ILWINNY against CARRAWAY.

Á slave, in afiadminief tratar de ¡jo-■nisnan, was taken in exe-sohHor a*1 debt due the cl;;,trihn« tees & leg-a-tees. 7'iie property was trato,-⅛ pos-delivered u> the pincha-ser after the sale, by the constable. It was held, xnai an action might be sustained airainst the the admims-trator; that theactof 1812, c. 4, express'ly trusts and not equitable interests in truststU1'e °f

THE Defendant^ a,Constable, had an execution agains^ J°hn M ‘■Ilwinntj and his mother, who were next of kin anj legatees of the testator, and who under the Act of . _ ,, , Distributions were entitled to part of the intestate s estate. Under this execution, the Defendant levied upon a slave which belonged to the testator, and which was in the hands of the Plaintiff as assets. There were no debts due from the testator.. The slave was purchased by a ' ' r stranger and delivered over to him by the Defendant ’•he sale. The Defendant gave in evidence, that only the right of the Defendants in the execution was sold. The jury, Under the direction of the Court, gave t}‘ie fuii value of the slave ; and, upon a motion, bv the , , r • • ' Defendant, for a new trial, the case was referred to this Court.

*Browne, for the Defendant*

Aj, there were no debts due from the testator, the Plaintiff held this slave as trústeé for the next of kin or g0 far, therefore, as the Defendants in the exe- ° _ _ . cution were entitled to a share, it was liable for the pay* nrent of their debts. It was a chattel possessed by the administrator in trust for those against whom the execü- . tion issued ; atid is, therefore, made liable, by the very WOr^s °f t'1e statute.^* The property was sold in the °”ly way that joint property ran be disposed of, viz; by seizing the whole, and selling the slaves undivided % whjc]j makes the vendee tenant in common with the other distributees.^†

The Act of Assembly is much broader than the statute from which it was partly copied ; for it embraces chattels and equities of redemption. The latter clause was pfo-bably added to put an end to the doubt, whether the' trusts described in the former clause extended to them.^‡ The design of the act' was solely to enable the purchaser to go into a Court of Equity, to procure his title to be co mpleted by a conveyance from the trustee. It makes express trusts, and not implied or constructive trusts, liable ;—otherwise, the second clause of the act, subjecting equities of redemption to execution, would be nugatory. In this case, the purchaser can only stand in the shoes of the legatee. His title cannot be better than hers was : But she could not be preferred to the creditors ; therefore, the purchaser cannot. The distributee, in this case, took only an undivided part with others in the will, and the act says, the property so levied upon, shall be transferred to the purchaser, free frotti all incumbrances. The effect then would be, that the purchaser must hold the property exempt from the shares of the other distribu-tees, which is absurdí

Menru. for the Plaintiff.

* 1812, c. 4

† 1 Salk. 392. 2 Ld. Raym. 871. Doug. 650.

‡ 1 Ves jr. 433

* Taylor, C. J. gave no opinion.

Seawell, J.

The Legislature, in passing the act of 1812, clearly understood that all equitable interests were not included, and thereby subjected to sale at execution j for they add a separate clause, to render liable equities of Redemption. f

This act is litefally copied from the 29th of Car, 2, in-eluding personal estate, which, was not within the statuté Of Charles. In construing that áct, the Courts held, that it did not extend to an equity of redemption: and this Our Legislature seems to have been apprised of, from the circumstance of the additional clause. At all events, it •would seem, that the Legislature were aware that the statute, when kdopted, w.oUld retain the sanie construction Which had been put upon it. It, therefore, does not extend to every species of equitable interest in the nature of a trust; but the difficulty is in defining, distinctly, its limits. The ca|e of Lyster v. Dolland, ^* is, at best, but A dark one. The Chancellor assigns no reason why ah equity of redemption is not extendible; but contents him* self %vith saving, that at first, he had supposed the wordé °f the statute were much larger, namely, that they were “ equitable interests,” but upon reading it, finds his mis* take, and that it does not extend to an equity of redemption. The design of the legislature certainly was, to free and discharge tho'se equitable estates from the control of the legal holder, when, by so doing, no injury or inconvenience was to be produced to others ; for, in a case wfiere their meaning is not clear and definite, we are bound to put such construction upon their acts, aa shall be Consistent with justice and reason. The effect of determining that the interest of the next of kin, is liaable, under this act, would be, entirely to exclude the claim of creditors and other next of kin, or of annihila^ ting the administrator, (at least fro tanto), and substituting in his stead as many trustees lor the creditors and next of kin of the deceased, as there should be purchasers of the property sold, and that without any security but their own solvency. This would be so monstrous and Would produce such confusion in the manner of applying and accounting for the assets, as should, without clear and manifest intent, prevent such interpretations And it makes no difference tftat there were no debts, for the essential quality of the estate is the same, whether thete be debts or not» And, moreover, the next of kin can, in no instance, receive his ratable part, without giving the refunding bond required by an act of Assembly. Were it not that the act declares the purchaser shall hold the estate freed and discharged” from the incumbrance_of the trustee, I should have thought there was no difficulty, and that the purchaser would have acquired precisely what the Defendant in the execution had, and stood in his shoes ; in which case, the legal dominion of the property must remain with the administrator till compelled to surrender it. And, possibly, this may be still the sound construction. But as to that, I will give no opinion. I should think, however, that the fair construction of the act was only to affect express trusts and leave undisturbed those equita-bie interests in the nature of trusts. In whatever way the case is considered, it appears to me

There must be judgment for the Plaintiff.

Hall, j. Lowrie, J. Daniel, J. and Ruffin, J, were of the same opinjon.^*

* Ves. Jr.