Carmichael v. Ray, 40 N.C. 365, 5 Ired. Eq. 365 (1848)

Dec. 1848 · Supreme Court of North Carolina

40 N.C. 365, 5 Ired. Eq. 365

MALCOLM CARMICHAEL & AL. vs. ARCHIBALD RAY & AL.

An administrator in South Carolina of the estate of an intestate, whose domicil was in that State cannot sue in this State an administrator appointed here, to recover the amount of assets remaining in the hands of the latter-after payment of the debts.

The case of The Governor vs. "Williams, 3 Ired. 154 cited and approved.

Cause transmitted from the Court of Equity of Cumberland County, at the Fall Term, 1848.

John Ray, form erly of Cumberland County in this State, removed into Marion district in South Carolina, and there died intestate in 1842. Administration of his estate was granted in South Carolina to Malcom R. Carmichael» one of the plaintiffs, and in North Carolina to Archibald Ray, one of the defendants. At the time of his death the intestate held several notes and bonds given to him by the defendant Archibald, who was his son, and was also, as alleged in the bill, otherwise indebted to his father. Those bonds and notes were left by the intestate among his papers at his residence in South Carolina, and came to the hands of the plaintiff Malcom R. Carmichael after he administered, and he still has them. The intestate also left a widow and several other children, and also grandchildren, the issue of children of the intestate, who died in his life time ; who as stated in the bill, are entitled to have the whole personal estate distributéd equally among them, the several sets of grandchildren representing their parents respectively. The bill is filed by M. C. Carmichael as the administrator in South Carolina, and by some of the children and grandchildren, against Archibald Ray, one of the sons and the administrator in this State, and against the widow and the remaining children and grandchildren ; and it seeks to charge the said Archibald with his said debts to his father, and to have an account of the assets in both States and for the distribution thereof. *

The defendant Archibald denies the right of the plaintiff, Carmichael, to call him to account in the premises or to receive any part of the assets in his hand ; but he admits his indebtedness to his father upon some of the notes mentioned in the bill, and submits to account therefor and for the personal estate in North Carolina with the other plaintiffs and the defendants, the widow and next of kin of the intestate.

Strange, for the plaintiffs.

No counsel for the defendants.

Ruffin, C. J.

The Counsel for the plaintiff, Malcotn R. Carmichael, endeavoured to maintain the bill, as his bill, upon his right, as the administrator in the state of the intestate’s domicil, to receive the estate remaining in the hands of the administrator here after the payment of debts, for the purpose of making- distribution of the whole estate among those entitled by the law of South Carolina. But he has no such right as that supposed, It is true, that an intestate’s estate, wherever found, is to be distributed according to' the law of-the Country of his domicil — that is, among the persons and in the proportions prescribed in that law. But each Country claims the power of administering those parts of the effects, that áre within it, for the security of domestic creditors, and, of course by the distribution of the surplus. There is no obligation on the administrator here to pay the surplus to an administrator abroad, though he be appointed in the country of the intestate’s domicil. There are two clear reasons, why there cannot be any such obligation. One is, that an administration has no extra territorial operation, so as to enable t.he administrator abroad to demand the surplus from the administrator here, more than it would enable him to sue an ordinary debtor to the intestate. The Governor v. Williams, 3 Ired. 154. The other is, that it would be a vain and useless thing for the one administrator to pay over the effects to the other; for, by whosesoever hand they be distributed,' they go to the same persons, and therefore it is immaterial, which hand distributes; and the law, will not take the fund from the one for the mere purpose of making it pass through the other.

The bill therefore, as far as it is the bill of the administrator, appointed in South Carolina, must be dismissed at his costs.

There would be some question, perhaps, whether the other plaintiffs could maintain the bill after improperly joining with Carmichael. But we are not disposed to consider it at all in this case, for as much as theadministra* tor here is desirous of settling the estate, and to that end submits to an account in his answer, and makes no objection on the hearing to a reference. The usual order for an account must, consequently, be made as between the defendant Archibald Ray and the other parties.

It may possibly become material to consider the acts of the administrator in South Carolina; as if it should turn out on enquiry, that he has paid to any of the next of kin their full shares of the estate or parts thereof, since that would pro tanto bar them from the distribution here. But nothing of that kind can be anticipated, as there is no suggestion upon the subject, either in the bill or answers. That circumstance might make it convenient and proper, that he should have been made a defendant, but it will not enable him to maintain a bill against the administrator here.

Psr Curiam.

Decree accordingly.