Smith v. Bryson, 62 N.C. 267, 1 Phil. Eq. 267 (1867)

June 1867 · Supreme Court of North Carolina

62 N.C. 267, 1 Phil. Eq. 267

C. D. SMITH v. JAS. H. BRYSON, Adm’r. of W. W. NOLEN, dec’d.

One of two partners Raving died, and the survivor and a third person having been appointed administrators on his estate, a bill filed by such surviving partner against his co-administrator for a settlement of the affairs of the firm is demurrable, and will be dismissed.

(Harrington v. McLean, ante p. 258, distinguished and approved.)

Bill, for a settlement, filed to Spring Term, 1867, of the Court of Equity for Macon.

The bill was filed for an account and settlement of the affairs of the firm of Smith & Nolen. The plaintiff is the surviving partner, and the defendant one of the administrators of the deceased partner, W. W. Nolen, and the bill charges, among other things, that Nolen misapplied the effects of the firm, and appropriated large sums to his own use without rendering any account therefor.

It is set out in the bill that “Nolen died intestate in October, 18 — , leaving your orator surviving partner of Smith & Nolen, and that, at the Court of Pleas and Quarter Sessions for the county of Macon, at-session, 18 — , your

orator and the defendant James PI. Bryson were appointed administrators of the estate oí the said Nolen, and duly qualified as such.”

At the return term the defendant filed a general demurrer, which was set down for argument, and the cause transmitted to this court.

No counsel for the plaintiff.

Moore, for the defendant.

This suit is between two persons, each of whom represents the interest in controversy — a suit of one of the representatives of a deceased man against another; that is a suit of a man against himself. A mere absurdity! See Ford v. Whedbee, 1 D. & B. p. 22, 1 Wms. Ext’rs. Part 2, B. 4, ch. 1, p. 592; 2 lb. Part 3, B. 1, ch. 2, p. 627; Griffith v. Vanheytlmysen, 4 Eng. L. and E. 25.

Pearson, C. J.

The plaintiff, as surviving partner, asks for an account against Bryson, who is one of the administrators, and against himself, who is the other administrator of the deceased partner. In other words, the plaintiff takes position upon both sides of the case! and when the account is to be taken, he will represent his own interest as plaintiff, and also have a right to represent his deceased partner. It is apparent that an account cannot be ordered under such circumstances, especially as the bill makes grave charges of fraud on the part of the deceased, of whom the plaintiff is one of the representatives! The only mode of proceeding for the plaintiff is to apply to the County Court to revoke the letters of administration, so that his deceased partner may have something like a fair showing. Griffith v. Vanheythuysen, 4 Eng. L. and E. 25, is in point. There a cestui que trust administered upon the estate of one of the trustees,! and jointly with the other cestui que trust sued the surviving trustees, charging a misapplication of the trust funds by the deceased, trustee. The Yice Chancellor says “The decree would involve an account of the estate of Yanheythuysen received by the plaintiff Griffin. Now how could such an account be taken, as between Griffin and his co-plaintiffs in the suit ? There is a direct conflict of interest between Griffin as representative of Yanheythuysen and his co-plaintiffs. The principle of the objection is, that the suit was so constituted that the account could not be taken,” &c.

This case differs from Harrington ancl wife v. McLean, at this term, in many respects. There the primary object of the bill was to have a specific performance of marriage articles in favor of the feme plaintiff in respect to certain slaves, and although the primary object failed by the political death of the slaves, it was allowed to be carried on for an account of the hires of such part of the slaves as had been in the possession of the defendant; and, although Harrington, one of the plaintiffs, was the .co-executor of Neill McLean, with the other defendant Malcom McLean, yet it was alleged and proved that, at the time he qualified, he was ignorant of the existence of the marriage articles under which his wife derived her title.

Per Curiam.

Bill dismissed with costs.