Coleman v. Hallowell, 54 N.C. 204, 1 Jones Eq. 204 (1854)

June 1854 · Supreme Court of North Carolina

54 N.C. 204, 1 Jones Eq. 204

JESSE COLEMAN, EXECUTOR against JOHN HALLOWELL AND JOSEPH SMITH.

Where a legacy is given to a trustee, for the use of a married woman, who died without having received the same, the personal representative of the husband, who survived the wife, but who also died without having recieved the wife’s legacy, is entitled to a decree for the same, against the wife’s administrator.

Cause removed from the Court of Equity of Wayne county, at the Spring Term, 1854.

Sally Smith by her last will and testament, bequeathed as follows: “Heave the sixth part of the money that is loft after paying my just debts, to m/ son Joseph Smith, as agent for Phebe Bryan, to be put to her use animal, or as she requires it, with interest from the time it comes into his hand:*..” The defendant John Hallowell, who war. appointed executor, qualified and proceeded to execute the will. Phebe Bryan, the legatee aboye mentioned died in tlie year 1850, leaving her husband Bennet Bryan surviving. Bennet Bryan, the husband ofPhebe died eight days after his wife, without having administered on her estate, leaving a last will and testament in which the plaintiff, Jesse Coleman, is appointed Executor, who qualified as such. John Hallowell also became the Administrator ofPhebe Bryan.

The bill is filed by Coleman, the executor of Bennet Bryan, against Hallowell as executor of Sally Smith, and as administrator of Phebe Bryan, and against Joseph Smith, praying that whichever may have the fund in his hands may account and pay over the same to him and for general relief.

The defendant Hallowell says, in his answer, that he had paid the amount in question to the trustee Smith, and Smith in his answer, says that he had paid a part of the said legacy to Phebe Bryan in her life time, but that he has a part thereof still in his hands, and submits whether he is not by the will entitled to retain the same, discharged of the trust.

The cause was set for hearing on the bill, answers and exhibit and removed to this Court.

Dortch for plaintiff.

J. IT. Bryan for defendants.

Battle, J.

There is no difficulty in ascertaining the rights of the parties in this case. The legacy given to the defendant Smith, in trust for Phebe Bryan, whether given fin; her separate use or not, having never been received by her husband in her life time, would have accrued to him as her administrator, liad he taken oiit letters of administration on her estate. But as ho died without having done so, and the defendant Hallowell having taken them out, the latter is entitled, to call upon the defendant' Smith, for the payment of the said legacy, or such part thereof as had not been paid to the wife in her life time; and then the plaintiff as the executor of Bennet Bryan, the husband, is entitled to call upon Hallowell, as the administrator of the wife, for the same. The plaintiff may have a decree upon these principles, which are too well known to the profession to require a reference to any authority in support of them.

Pee Curiam. Decree accordingly.