In this case it is necessary, in order finally to settle the subject of litigation, thattlie representatives of Richard Quince, junior, should be made parties previous to a decree. One of the principal items in the report of the master, against the present defendant, is a sum said to have been paid by Parker Quince to Richard Quince, junior, his co-executor. If this sum was applied by Richard Quince, junior, for the benefit of the estate of Richard Quince, senior, the present defendant should not be made accountable for it: and that an opportunity may be had to shew this application, if made, the representatives of Richard Quince, junior, should be before the Court, they should also be in Court, that if the money has not been so applied and the estate be solvent, a decree may be rendered against them for it in the first instance, to prevent circuity of remedy.
Administrators of Quince v. Executor of Quince, 5 N.C. 160, 1 Mur. 160 (1807)
The Administrators of Richard Quince the elder vs. the Executor of Parker Quince
—From Wilmington district
A pays toB his coex-sum of ingto fliefr estate.101'! ardtitead* siinistrator of the tlst?-suit against tiie representatives of a, who for testator's representa-who ueymustbe «eafe piu>
Richard Qiiince the elder diet! ih the year 1778, leaving h last will and testament, in which his sons, Parker Quince Richard Quince, jün. were named Executors, who a£-ter his death proved the will and qualified as Executors. Richard Quince, juri. died in the year 1780, intestate. Parker Quince died in the year 1785, leaving a will which Thomas Callender was .named Executor, who qualified as such. The present bill was filed by John Da-Vis? Administrator de horns non of Richard Quince the el ■ ^er> *n year 1787, against Thomas Callender, Executor of Farkep Quince, and against Richard Quince and Rebecca Quince, infant children of Richard Quince, jun. deceased executor, by Thomas Davis, their guardian. The hill charges that Parker Quince and Richard Quince^ ° jün. Exeeutoraóf Bichare! the elder* received into their property of their Testatof tó a large amount, and pray3 that an account may be taken and a decree ¿nade ih favor of complainant for whatever sum shall be found due. Callender, Executor of Parker Quince, filed ah answer, ahd the accounts Were referred to the master, who made a report, and therein among other things he charged the present defendant With a sum of money, said to havé been paid by Parker Quince to Richard Quince, junior, life co-executor. On the hearing of the cause it was insisted by the defendant’s counsel that Richard Quince the co-executor of Parker, haring received into his seperate possession some considerable property or sums of money belong, ing to the Testator’s éstate, thé representatives of said Richard Quince alone are liable, & hot the estate of Parker j ahd that therefore ho decree ought to be made until the representatives of Richard Quince were regularly before the Court. The counsel for the complainants contend-*161éd that it was not necessary that the representatives of Richard Quince, junior, the deceased co-executor should be before the court, upon the principle that Parker Quince being the surviving Executor of Richard Quince the elder, was liable for the whole amount of complainant’s demand» and that the Executors of Parker Quince and not the complainant were the proper pes'sons to call the representatives of Richard Quince, deceased, to an account for any supposed balance due by them. The case was transferred to this court for the opinion of the Judges upon lire question whether the representatives of Richard Quince, deceased, should be made parties before a decree was made.