Colson v. Martin, 62 N.C. 125, 1 Phil. Eq. 125 (1867)

Jan. 1867 · Supreme Court of North Carolina

62 N.C. 125, 1 Phil. Eq. 125

JOHN J. COLSON, Adm’r, &c., v. JAMES H. MARTIN and others.

Where a married woman, entitled to personal property in remainder after a life estate, dies before the tenant for life, upon the death of such tenant, her administrator will be entitled for the benefit of her husband. If her husband then die, leaving an executor, the latter will take the beneficial interest.

An administrator is not bound to follow the asset® of his intestate into another State; but he should hold the persons, in whose hands such assets are, to an account for them, if they prefer a claim against the estate in his hands.

An administrator will not ordinarily be allowed costs in a cause constituted by him for the purpose of having the instructions of the court upon questions which, with reasonable certainty, may be solved by counsel; nor whore they are incurred by making unnecessary parties.

Partial allowance of costs in such a cause, under peculiar circumstances.

.(Woodley v. Gallop, 5 Jon. Eq., 188, and Coleman v. JCallowcll, 1 Jon. Eq., 204, cited and approved.)

Bill, filed at Fall Term, 1860, of the Court of Equity for Arson, by complainant, as administrator of Lemuel K. Mar-fin, who died in 1840, in order to obtain a declaration of certain rights under the will of James H. Martin, who died in 1836.

In this will certain slaves were left to the testator’s widow •for life, and then to the said Lemuel. Tlio widow outlived Lemuel, and died in 1858. She had allowed the defendants, James and Edmund, to take with them to Texas two of the «laves, which at her death would have gone to Lemuel, their father. Besides these, Lemuel left several children, one of ■whom, Emily, married James M. Waddill, and died leaving •children. One Hough administered upon her estate, and since her death her husband has also died, leaving- a will and an executor. Another daughter of Lemuel was Eleanor, who married Thomas Waddill, and died leaving children. The complainant made parties to his bill, amongst others, -the executor of Emily’s husband, as well as her children; also the husband of Eleanor, and her children. It asked for instructions as to who were entitled to the interests of Emily and Eleanor, and as to the duty of complainant in regard to the slaves taken, as above, to Texas.

Answers were put in, and at Spring Term, 1861, the cause was set for hearing, and by consent transferred to this court.

JDargan, and Blaclcmer & McGorJde, for the complainant.

Phillips & Battle, for the defendants..

Reade, J.

Under the will of James H. Martin his widow,. Charlotte Martin, took a life estate in the property, with remainder to Lemuel K. Martin, the complainant’s intestate. Lemuel K. Martin died intestate in the life time of the tenant for life, and his remainder vested in the complainant as his administrator, for the benefit of the next of kin.

Emily, one of the daughters of Lemuel K. Martin, intermarried with James M. Waddill, and died after the death of her father, but in the lifetipie of the tenant for life; and her interest vested in her administrator for the benefit of hex" surviving husband. Her husband then died in the lifetime of the tenant for life, aixd upon his death his beneficial interest vested in his executor, the defendant Mr. Hargrave. Woodley v. Gallop, 5 Jon. Eq., 138; Coleman v. Hallowell, 1 Jon. Eq., 204.

The same facts and principles apply to the interest of Eleanoi', another daughter of Lemuel K. Martin, intermarried with Thomas Waddill, except that Thomas Waddill is still living, and is entitled to the interest of his deceased wife, Eleanor, through her administratoi-.

The complainant was not obliged to go to Texas to recoveithe property of his intestate in the hands of the defendants, James H. Martin and Edmund Martin. But it is his right and his duty to retain their shares in the estate in his hands, and to hold them to an account for the benefit of the estate, to the extent of the value of the property upon the termination of the life estate of Charlotte Martin, if of less value than their shares; and to the extent of the value of their shares if the shares are of less value than the property.

We have had some doubt as to allowing costs. An administrator or executor will not be allowed costs where the questions raised for the advice of the court may, with reasonable certainty, be solved by counsel; nor where costs are improvidently incurred in making unnecessary parties; all of which seems to be the case here. But as the questions raised have really been 'controverted by some of the defendants in their answers, we suppose that if the complainant had acted without the advice of the court, he would have been sued at all events. He is therefore allowed his costs, including $35, expenses incurred in attending on the Clerk to state an account, to be paid out of the shares of James H. Martin and Edmund Martin, in the fund in complainant’s hand. The defendants who have answered, except defendant Hargrave, whose cost must be paid out of the fund, must pay their own costs. And the complainant must pay, out of his own funds, the costs of making parties the other defendants, who have not answered, except the defendants James H. and Edmund Martin aforesaid.

Per Curiam.

Decree accordingly.