Love v. Love, 41 N.C. 325, 6 Ired. Eq. 325 (1849)

Dec. 1849 · Supreme Court of North Carolina

41 N.C. 325, 6 Ired. Eq. 325

ROBERT LOVE & AL. vs. JOHN C. LOVE.

Where legatees under a wiii bring a suit in Equity against the executor for their respective legacies, and, upon an account taken, in which the execu. tor is charged with all he had received or ought to have received, a decree is rendered against the executor in favor of each legatee for the share due to him, a legatee who had given his bond to the executor for purchases, mode by him at the sale of the testator’s effects, can have no relief against a suit upon that bond, subsequently brought. He should have had it deducted from the amount ascertained to be due to him in the original decree.

Cause removed from the Court of Equity of CaswellCounty at the Fall Term 1849.

John Love died in 1844, having made his will, of which-the defendant is the executor, and therein made the following bequests, with others : “It is my will that my negroes Lem, Sam, Dinah, Salem, and Rufus be sold and divided between four of my children, Robert, Sarah,. Mary, and Elizabeth: and that all my stock of horses,, half my cows, wagou, sheep, and hogs be sold, and my debts paid out of the money, and the balance be divided among my said four children Robert, Sarah, Mary, and Elizabeth.” The defendant sold the slaves andother property above mentioned, and, after the payment of tha debts, there will be a surplus of $1948 42, applicable to the legacies, deducting, however, the charges of administration. At the sale, the plaintiff, Robert, made purchases to the amount of $409 78, for which he gave a bond, with the other plaintiff, Samuel Love as his surety, payable to the executor in January 1845. In July 1847, the defendant instituted a suit at law against the plaintiffs on their bond; and in August following this bill was filed. It charges, that, after the payment of all the testator’s debts and charges on the estate, there is a large surplus to be divided among the four legatees above mentioned, of which one fourth part belongs to the plaintiff, Robert; and that such fourth will exceed the sum due on the said bond given by him ; and that it was the duty of the executor to render to the plaintiff an account of the fund, and apply his fourth part to the satisfaction of the bond, but, instead of so doing, the defendant brought the suit on the bond, without having accounted, and without even asking for a settlement or payment of the bond. The prayer thereupon is for a perpetual injunction, and general relief.

• The answer states, that the defendant did not object and would not have objected^to come to a friendly settlement with the plaintiff in the premises, and to deduct from the plaintiff’s bond the share of the estate, to which the plaintiff was entitled under the will. But it states further, that the plaintiff made no application of the kind; and, on the contrary, that the plaintiff and the three other legatees instituted a suit in the Court of equity for an account and distribution of the whole estate in his hands, and that the defendant submitted to an account therein, and that the same was ordered by the Court, and was taken in the Master’s office and reported to the Court; and that in the account the defendant was charged with the whole proceeds of the sales as being in his bands in cash, and one fourth thereof allotted to the plaintiff as his legacy, without allowing any deduction for, or taking any notice of, the sum due from the plaintiff on his bond for purchases at the sales ; and that the Master’s report had been confirmed. The answer then states, that the defendant, finding that the plaintiff was in that suit thus endeavoring to charge him with the whole of his legacy and to obtain a decree for the payment thereof in cash, was advised to protect himself from loss under such a decree for money, by having his demand against the plaintiff ripened into a judgment, by or before the time the decree could probably be pronounced ; and, with that view, and that alone, the suit at law was brought after the confirmation of the report.

There was a motion to dissolve the injunction, on the coming in of the answer, which was refused. The cause was then set for hearing, and transferred to this Court. .

Norwood, for the plaintiff.

E. G. Reads and Kerr, for the defendant.

Ruffin, C. J.

The bill must be dismissed. Supposing the case made on its face sufficient to sustain it, the reasons given in the answer, why the defendant brought suit on the bond and ought to have judgment on it, must strike any mind as fully sufficient. There is no suggestion, that the defendant is in failing circumstances, whereby the plaintiff will be in danger of losing his legacy, if the money due for his purchases be taken out of his hands. The only foundation for the bill is, that it will be inconvenient to the plaintiff to pay his debt, instead of having it and the legacy extinguished pro tanto, by deducting the less from the greater. Certainly, that would be in itself very right. But it seems plainly to be the plaintiff’s fault, that it was not done in taking the account in the other cause, in which the accounts of the whole estate were ordered. At least, it was as much the fault of the plaintiff, as of the defendant. He had therefore no right to complain, that the defendant should endeavor to meet his decree by a judgment in due time. But there was, in truth, no necessity for the present bill ; for, upon a petition in the first cause, the same relief could have been had without this additional expense ; or, in a proper case, even after the judgment and decree, an order might have been obtained in either Court, that the parties should mutually acknowledge satisfaction either in whole' or in part, according to the justice of the case. The bill in itself is, indeed, radically defective. It simply prays an injunc* tion, upon the ground that the plaintiff does not owe the whole debt by reason of some counter equitable demand. But it does not ask any steps tobe taken for ascertaining that demand. It does not pray for an account: and well it might not, as this plaintiff by himself could not demand it, and a plea of the pendency of the former suit by all’ the legatees for general account would have barred it. Such a bill will not lie ; for the injunction in sueh a case is but incidental to the general relief, which a plaintiff seeks, and to which he entitles himself by the facts stated in the bill. Here an injunction merely is asked for ; and if granted, it would stand without the Court being able to determine how long or for how much it ought to be kept up.

The matter will, probably, be adjusted between the parties, as the defendant in his answer professes to have been always willing to allow a deduction of the sum admitted by him to be due to the plaintiff. But, if it should be otherwise, the plaintiff can probably obtain the requisite order in the other cause. At all events, the present bill cannot be maintained, without allowing all controversies to be split up and made the subjects of as many suits in equity, as there are items in dispute, and granting injunctions upon isolated parts of a case without the opportunity of determining the general merits.

Per Curiam.

Bill dismissed with costs.