Horah v. Horah, 60 N.C. 107, 1 Win. 107 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 107, 1 Win. 107

JOHN M. HORAH, Administrator, with the will annexed, of GEORGE HORAH vs. SOPHIA HORAH, WM. H. HORAH and others.

'Xht personal roprssantatire has no right to ask the advice and direction of the Court in the settlement of the estafe of the deceased, except as t® matters in which he is interested as executor or administrator.

A legatee far life or years m not bound to give a bond for the benefit of remaindermen, unless it is shown that there is danger of the property being wastid or eloigned.

This cause was transferred to this Court for trial from the Court of Equity of Rowan county.

"The bill was filed by the administrator, .with the will annexed, of fireorge If orad against tire testator’s widow, and his brothers and'sisters and the children of deceased brothers and sisters.* It sets out a clause of the testator’s will by which he gives-his estate to his wife, the defendant, Sophia, for life, with remainder to the other defendants ; and the same clause provides that the defendant, James, shall hare a certain house and lot given to the defendant, Sophia, upon'his, James, paying to her $4,000 ; and the bill states that controversies have arisen among tbe-defendants concerning the right of the defendant, Sophia, to receive the property given to her, without giving a bond with surety for the benefit of the re-maindermen ; and also' concerning the right of the heirs of James (who is dead) to have the lot ob payment of the $4;000 ; and it is also a matter of .controversy between the administrator of James and his heirs, which of them must pay the money. The plaintiff asks the advice anti direetion of the -Court concerning these several matters.

W. II. Bailey for the plaintiff.

Blackmer for the defendants.

Batsclb, J.

This bill has been filed by the adminis-* trator, with the will annexed of the testator, against the devisees and legatees, to obtain the advice and direction, of the Court in relation to his duties in the settlement of the estate.

It has been repeatedly declared by .the Court that, upon such a bill, it will give ncr'adviee and direction upon any matter in which .th# executor is not interested.as,such. In the will now .before us the whole estate of the testator is given to the widow for life, with certain limitations among the testator's brothers and sisters. The only ‘Question ashed by the administrator, with the will annexed, in which he is interested, is, whether the widuw can be required to give a bond as a security for the personal estate which she tabes for life only ; and it is clearly settled that she cannot. See Williams on Executors, 1198. Unless a case of danger can be shmvn she can only be called upon to sign and deliver to the executrix an inventory of the articles, admitting their receipt, expressing that she is .entitled to them for lift, and that after-wards they belong to. the remaindermen. The assent of the executor to the legacy for life .will, vest the interest in. remaindermen ; which they must tabe means to protest, should they find that it isdibely to be endangered by the act of the tenant for life. So, any .questions which may arise between the . remaiudennen, as to their respectiva rights in' the property, must be settled in a suit amon g themselves, as tine executor will have no interest in it, and will qot be allowed to nleddle with it.

A decree may be drawn in accordance with this opinion : but the plaintiff must .pay the costs, as there was no necessity for his bill.