King v. Galloway, 58 N.C. 122, 5 Jones Eq. 122 (1859)

Dec. 1859 · Supreme Court of North Carolina

58 N.C. 122, 5 Jones Eq. 122

G. M. KING AND ANOTHER against NATHANIEL GALLOWAY AND OTHERS.

A bill in Equity cannot be sustained, which seeks relief in relation to one article of property, only, belonging- to the estate of a decedent, without calling for a general account and settlement of the estate, and making alt persons interested in the same, parties to the suit.

{Baird v. Baird, 1 Dev. and Bat. Eq. 524, cited with approbation.)

Appeal from an interlocutory order of the Court of Equity of Brunswick county.

The bill is filed for the sale of a slave, by the name of Pri-mus, for the purpose of a division. It alleges that the slave, in 1809, was purchased by John Bell, -senior, who held him as his property until his death intestate, in-; that his widow and his two sons, John, junior, and James, who were the only distributees, agreed to hold the property, iii the slave, Primus, as their own, without administering on the estate of John Bell, sen’r., and that they did so for many year’s; that James Bell then sold his interest to the defendant, Nathaniel Galloway, many years ago, and died, and "John Bell, junior, sold his interest also to defendant, Galloway, and he and the widow, Raney, held the slave jointly, for several years, hiring him out and receiving the profits jointly, in proportion to their several rights ; that in 1854, Raney Bell, by deed, conveyed her interest to the plaintiff, G. M. Ring, who, in 1859, conveyed his interest to the plaintiff, Rufus Galloway; that Raney Bell died in 1856. The bill alleges that John Bell, junior, has taken administration on the estate of John Bell, senior, and that this was done at the instance of the defendant, Rathaniel Galloway, to hinder and thwart the plaintiff in the recovery of his rights, and says, such administration was totally unnecessary, as the estate was not in debt, and the parties had long acquiesced in this private arrangement among themselves. John Bell, the younger, as administratoi-of John Bell, senior, is made a party defendant, but the representative of Raney Bell was not made a party, either as plaintiff or defendant.

The defendants demurred, and assigned as the cause of demurrer, that the administrator of Raney Bell 'was not made a party to the bill.

On the argument of the demurrer, in the Court below, his Honor overruled it, and ordered the defendants to answer over. Erom which order, the defendants were allowed to appeal to> this Court. i

B. Q-. Haywood for the plaintiffs.

Baiter, for the defendants.

Battle, J.

"VVe are clearly of opinion that the bill cannot be sustained, because it seeks relief in relation to one article of property, only, belonging to the estate of a decedent without calling for a general account and settlement of the estate. In-the case of Baird v. Baird, 1 Dev. and Bat. Eq. 524, it was decided that one partner cannot demand an account in respect of particular items, and a division of particular parts of the property, but the account must necessarily embrace every thing connected with the partnership. The reason is obvious, that it would otherwise be impossible to do complete justice between the partners. The same reason applies with equal force with regard to the settlement of the estate of a deceased person. One of the next of kin or the-person claiming his interest, cannot call for a settlement with respect to a part of the assets, only, without having a full account of the whole estate; otherwise it cannot be seen what are the rights of the parties, in relation to any particular part of the estate, and the administrator might be harrassed by a multiplicity of suits instead of having the respective interests of all the parties ascertained and adjusted in one, only.’ To a bill for a general account and settlement of the estate of John Bell, senior, the personal representative of his widow as w'ell as the next of kin or their representatives, would be necessary parties, and the necessity of making them such, cannot be avoided by filing a bill only for a partial settlement. The demurrer must be sustained and the bill dismissed, and in doing this, it is unnecessary for us to notice particularly the fact, that one of the plaintiffs, to wit, Gr. M. King, does not seem, according to his own allegations, to have any interest in the subject-matter of the suit; on which account, also, the bill seems to be demurrable. See Edwards on Parties, 229: Cuff v. Platell, 4 Russ. 242; 3 Eng. Con. Ch. Rep. 651.

Pee. Coei am, Bill dismissed.