Goode v. Goode, 6 N.C. 335, 2 Mur. 335 (1818)

July 1818 · Supreme Court of North Carolina
6 N.C. 335, 2 Mur. 335
Richard Goode and others, v. Joseph Goode and others

Richard Goode and others, v. Joseph Goode and others.

From Rutherford.

Ex’rs. and AdmTs. An account cannot be decreed of the personal estate of a deceased person without making1 the executor or administrator a party to the petition.

.Executors de son tort are not answerable to the distributees on a petition .filed by them as against a rightful executor ; for if a decree should 1 he made for petitioners and they receive the property under it, they thereby become themselves executors de son tort, and a court of equity will never become accessary to such an act, or so far disregard the rights of creditors.

This was a petition filed in the county court, for an account and distribution of the personal estate of Judith Goode,-who died intestate. The petition charged that the Petitioners and Defendants were the next of kin of the said Judith, and entitled to. distribution of her estate. That the said Judith died intestate, and the Defendants took the «state into their hands as executors, and* *336Were bound to distribute it. The Defendants filed their-answer, and the cause was heard in the county court, and dismissed ; from which decree there was an appeal to j|ie supci-ioj. court, when the decree of the county court was affirmed, upon the ground that no administration of the eslafebf the intestate, bad been taken. From that dc-cree the Petitioners appealed to this Court.

RueffN, Judge,

delivered the opinion of the Court:

The question in this case is, whether an account cart l)e decreed of the personal estate of a deceased person, Without making the executor or administrator a party to the bill ? and we think it cannot. The case of Humphreys and wife v. Humphreys, (a) is a direct authority to this point. It is ti-ue, that here the Defendants are ealied executors in the petition ; but the petition also charges that Judith Goode died intestate. This therefore is an attempt to snake executor:-; áeson tort, answerable to distributees, which we are satisfied, from the reasons given in the case just cited, ought not to be done. There-is another consideration that has great weight with us, which is, that if a decree should be made for the petitioners, and they' receive the property under it, they would themselves thereby become executors de son tori; which implies a wrongful interference with the property of the intestate. A court of equity can never be accessary to Such an act, or so far disregard the rights of creditors. The decree of the superior court must be affirmed.