McKay v. Royal, 52 N.C. 426, 7 Jones 426 (1860)

June 1860 · Supreme Court of North Carolina
52 N.C. 426, 7 Jones 426


The debt made by one acting as executor in employing counsel after the testator’s death, to advise and assist such executor in the discharge of his duties, is 4 personal debt, and not one against the executor as such.

AotioN of assumpsit, tried before SiiepheRd, J., at the last Spring Term of Sampson Superior Court.

The plaintiffs, who are attorneys at law, and professional co-partners, appeared as counsel for Catharine Royal, who propounded the will of her husband, Rezen Royal, for probate, wherein she was named executrix, and they also acted as counsel for her generally, in the management of the estate.- — ■ After the rendition of these services, the plaintiffs demanded payment, which the defendant refused, whereupon this suit was brought against her individually, without declaring against her-as executrix. The counsel for the defendant asked the Court to instruct the jury that as no express promise was made by defendant to pay this demand, the plaintiffs could not recover.

ITis Honor refused the instruction, and defendant excepted.

Yerdict for plaintiffs. Judgment and appeal.

Eowle and E. G. Haywood, for the plaintiffs.

No counsel appeared for the defendants in this Court.

Battle, J.

There is not the slightest foundation for the defense attempted to be set up by the defendant. As the plaintiffs were employed by the executrix to advise and assist her in the probate of the will of the testator, and in the management of his estate, she became liable to them upon a quantum merwit in her individual, and not in her official capacity. Their claim against her could not be a debt of the testator, for, say the Court, in Hailey v. Wheeler, 4 Jones’ Rep. 159, “it is not possible to conceive how a debt of the testator can be created by matter occurring wholly in the executor’s time. If an executor make an express contract in reference to- the- pro*427perty of the estate, as, if he employ one to cry the sale of the property, as auctioneer, this is not a debt of the testator.”— So, in the present case, the executrix having employed the plaintiffs as her attorneys and counsellers, though in relation to the business of the estate of her testator, the debt is hers, and she must pajr it, and if the disbursement be a proper one, she will be allowed a credit for it in the settlement of her account with the estate. This is common learning, and it is unnecessary to enlarge upon it, or cite any other authority in support of it.

Pee Cueiam,

Judgment affirmed.