Gregory v. Hooker, 6 N.C. 250, 2 Mur. 250 (1813)

Jan. 1813 · Supreme Court of North Carolina

6 N.C. 250, 2 Mur. 250

Mary Gregory v. Stephen R. Hooker, Administrator, &c.

¡>From Halifax

Tlie truth of the plea “fully administered,”- must be tested, when process is served, or when the plea is pleaded. After that time, an Executor or Administrator is not at liberty to dispose of the property of the testator or intestate, although it was pj-oper to do so before. lie can sell only before the lien of the creditor attaches upon the g-oods of the deceased debtor.

The Plaintiff brought suit against the Defendant in Halifax County Court, returnable to August term, 1810, when the Defendant pleaded, “Fully administered, no assets, judgment, bonds, &c. no assets ultra, property sold under act of assembly, and the money net yet due.” The case was taken to the Superior Court, and at April term, 1812, the Defendant moved for leave to add, as of November term, 1810. of the County Court, a plea, 4S Since the last continuance, that the residue of the property had been sold under the act of Assembly,” and founded his motion on an affidavit, which stated in sub-, stance, that he administered at February term of Edge-comb County Court, 1810, and at the following term, having notice of debts due from the estate, sold some of the estate according to the act of Assembly; and that afterwards having notice of more debts, he did, before November term, 1810, sell the residue of the property. Of all wbic!^ his counsel was informed, and was required to plead every thing necessary for his defence as an administrator. That at the pending May term, the writ in this rase was served on him, and at August following, iiis counsel entered the pleas then necessary for his de-fence, but omitted to plead at the following November,' the sale of the residue of the estate.

Haux., Judge,

delivered the opinion of the Court:

ft ¡nay be a hard case,on the Defendant, if he shall lr.iviv the Piaintilf’s debt to pay out of his own pocket; but the truth of the plea of “ fully administered,” in point of time, must be tested when process is served, or when pleaded,- after that time the Defendant is not at liberty to dispose of the property, under the acts of Assfembly alluded to in the affidavit, although it was proper to do so before. ThOse acts* of Assembly did not intend to deprive a creditor of the lien, which the commencement of an action might give him on the goods of the deceased. He can sell only before that lien attaches. The application to enter the plea must be refused.