Blanchard's Heirs v. M'Laughan's Adm'rs, 5 N.C. 402, 2 Car. L. Rep. 402 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 402, 2 Car. L. Rep. 402

Blanchard's Heirs v. M'Laughan's Adm'rs.

The complainants, next of kin and the only children of Miles Blanchard, dec. state in the bill, that their father died seised and possessed of a considerable real and personal estate, leaving a widow, Sarah, who was appointed administratrix, and afterwards intermarried with M'Laughan; that M'Laughan had the exclusive management of the whole during the marriage, received monies for the sale of property and its hire, and for the rent of lands, and afterwards died without accounting to the complainants: That he also received monies for the rent of other lands, the property of the complainants, as their paternal guardian, which lands were not derived from their father Blanchard: That after the death of M'Laughan, administration of his effects was granted to Jeremiah Devan, who received into his possession all the estate of M'Laughan, in right of his wife, as administratrix of Blanchard, and all the estate of the complainants, to which they were entitled by the death of their father and otherwise.

Upon the death of Devan, a supplemental bill was filed, making his executors William Sutton and Margaret Devan, parties, and charging that they had received assets of Blanchard and M’Laughan, sufficient to satisfy the complainants, and praying a decree against them.

The cause came on to be heard before Taylor C. J. at the Spring Term, 1815, of Bertie Superior Court, when a motion was made to dismiss the bill as to the executors of Devan, upon the ground that they were only responsible to the administrator de bonis non of M'Laughan, who is responsible to the complainants.

The motion to dismiss was overruled by the Court, and from that order an appeal Was brought to this Court.

Browne for the appellants.—Nash and Hogg for the appellees.

Seawell J.

delivered the opinion of the Court:

We are all of opinion, that the motion to dismiss the bill should be overruled. And although we hold that a creditor of next of kin cannot, without social circumstances, call upon a debtor to the estate; yet we think we are well warranted by authority and justice, to entertain a bill for both, against all persons in possession of the estate of fund, who have not paid for it a valuable consideration: And that in a case where such fund has been received from one, who was both in law and equity a trustee, there can be no possible objection against his accounting.

In this case, upon the death of M’Laughan, who was in possession of the fund as a trustee, that fund passed to his administrator, who could only stand in his shoes, and represent him in the character in which he originally stood; and upon the death of this administrator, the fund coming into the hands of his administrator, could acquire no different character, but still remained, in equity, the property of complainant ; and has passed on in like manner to the defendants, who have moved to dismiss the bill. Now the objection that the property should first come through the medium of the administrators of Blanchard, with the view of paying creditors, completely fails; because these administrators, as well as the administrators of Devan (who may assert Devan’s right) are made parties, and who have it in their power to set up such defence as completely as if they were the only defendants. The case from Ch. Cases 57, Nicholson v. Sherman, was where a legacy was devised, and testator made baron and feme his executors and died: The baron afterwards made the feme, and his son his executor, and dies: The legatee exhibited his bill against both the feme and the son, charging that the estate of the testator who devised the legacy, had come to the hands of both; and upon demurrer, the same was disallowed, though the want of privity in lawas there urged: And to the same principle are the cases in 2 Vern. 75, and 4 Vesey, ju’r. 651.^*

* This being an Appeal from the decision of Taylor C. J. he gave no opinion.