Shaw v. Shaw, 5 N.C. 334, 1 Mur. 334 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 334, 1 Mur. 334

Shaw and others v. Shaw and others.

~f k From Fayetteville. J

A legacy or distributive share cannot be recovered, without setting up a legal representative of the deceased, on whose eátate a claim for the one or the other is made. ^ . O':*

This was a bill of revivor, and the original bill which it was the object of the present bill to revive, was brought to recover a legacy bequeathed by the last will and testament of Dushec Shaw, the elder, of, which; Duncan Sháw, Niel Shaw, and one Buie, were appointed executors. But from the'statement made by the Complainants’ bill, it appeared that the present Defendants were neither the legal represen tires of the said Dushee Shaw, the elder, nór were they expressly charged in the bill with liaving taken into their possession any of the assets of the said Dushee: but some of them, to wit, Lucy, John and Niel Shaw, were called upon as executors of Daniel Shaw and Niel Monroe, as executors de son tort of Catharine Shaw, who were stated to have been the administrators of Duncan Shaw, the acting', but not the surviving, executor of Dushee, the testator. To the right of the Complainants to have their bill reyived against the Defendants, upon this statement, the Defendants demurred, and assigned two grounds of demurrer. First, that the Complainants ¡¡ad shewn no title or right to revive against them, or to cali them to an account, as the representatives of Daniel Shaw and Catharine Shaw. Secondly, that they had not shewn such right or interest ■ in Defendants, respecting the subject matter of the bill, as would make them liable to Complainants, or would sanction a decree against them.

Wright, Judge,

delivered the opinion of the Court:

We are of opinion, that the demurrer is sustainable upon both grounds. For as to the first, as Daniel Shaw and Catharine Shaw were only the administrators of Duncan Shaw, the executor of Dushee Shaw, out of whose estate the legacy is claimed, the Defendants, even if a legacy could be recovered from any but a legal representative of the tegtaíór, were not hound to the discovery or relief sought from them •, in as much as Daniel Shaw and Catharine Shaw, whom they represent, are not charged with having taken into their possession any part of the fund out of which the legacy was payable. As to the second : The Defendants are not themselves charged as the representatives of the testator, Dushee Shaw, the elder ; and even supposing them to have been charged with having posse,ssion of assets subject to the payment of the legacy, yet it has already been decided by this Court, that a legacy or distributive share cannot be recovered without setting up a legal representative of the deceased, on whose estate a- claim either for the one or the other is made. Let the demurrer be allowed.