Garibaldi v. Hollowell, 68 N.C. 251 (1873)

Jan. 1873 · Supreme Court of North Carolina

68 N.C. 251

ANGELO GARIBALDI v. C. W. HOLLOWELL and EDWARD WOOD, Ex’rs of JAS. C. JOHNSTON, dec’d.

A died in 1866, in the county of Chowan, leaving estates in other counties which he gave to different persons, and which he oharged with the payment of his debts in the counties respectively, wherein such estates were situate and the creditors resided. B living at the time of A’s death in Halifax county, claimed a debt against A’s estate arising under a special contract made in the county of Chowan in 1862, for services rendered at various-times and places, including services rendered in Halifax: Held, that B’s debt when established, would be a charge against the estate of A left in Halifax county.

Civil action, tried at the January (Special) Term, 1873„ of Halifax Superior Court, before Cloud, J.

The case stated for and sent to this Court, is :

“The plaintiff claimed for services rendered by himi upon the testator Johnston’s Caledonia plantation in Halifax county, during the years 1862-’63-’64-’65, upon a special contract made with him in Chowan in 1861. Then, and before that time, the plaintiff had resided in Washington county, but from January, 1862, and up to the trial of the cause, resided in Halifax county.

The plaintiff put in evidence the last will and testament •of the testator, Jas. C. Johnston, who resided in Chowan county, which is reported in Phillips’ N. C. Reports, p. 251, to which reference is made.

It was in evidence that Futrell, one of the devisees and •executors, died intestate in Halifax, in the year 1867, and that administration upon his estate was granted to the plaintiff, and that he has in his hands, of the estate of the testator, Johnston, devised to Futrell, in money a large amount, to wit: much more than the sum demanded by plaintiff in this action. That all of the debts of the testator, Johnston, has been paid off, except the demand of the plaintiff, and a .settlement of the estate made between the other executors, Hollowell and Wood, and this plaintiff, as administrator of .Futrell. That Edward Wood died in Chowan in November, 1872, leaving a last will and testament, of which he appointed the defendants, W. C. Wood and Caroline M. Wood, the executors.

After closing the evidence and before submitting the case to the jury, a preliminary question'was submitted to the Court, to wit: Whether under the will of James C. Johnston, and in carrying into effect its provisions, the claim of the plaintiff, if established, would fall upon that portion of the ■testator’s estate given to the devisee and legatee, Henry J. Futrell, in the adjustment between the plaintiff and the ether executors, devisees and legatees, or upon other parts of the estate, the plaintiff agreeing that he had in his hands .ample funds to satisfy his demand, if it constituted a charge upon the testator’s estate lying in the counties of Halifax :and Northampton ?

His Honor held that the plaintiff’s claim would, as between him as administrator, and the other executors, devisees and legatees, be a charge upon the estate given to and bequeathed to Futrell, whereupon he, the plaintiff, submitted to a non suit and appealed.

Gonigland and Mo&re & Gatling, for appellant.

IF. N. H. Smith, contra.

Reade, J.

The testator, Johnston, had an estate in Chowan county, where he lived and died, which he gave to one Edward Wood, charged with his “ debts in the county of Chowan, and his funeral expenses.” And he also had an estate in Pasquotank county, which he gave to C. W. Hollowell, charging it with his debts owing in that county. And he also owned estates in Halifax and Northampton counties, which he gave to H. J. Futrell, charged with “ any debts I may owe in said counties.” And each of the persons named, was made executor of the particular estate bequeathed and devised to him, charged as aforesaid.

The plaintiff lived in Halifax county at the time of testator’s death, and has lived there ever since. If the testator, Johnston, owed him anything, it was a “debt which he owed in the county of Halifax,” and was a charge upon the estate in Halifax, to be administered by Futrell, of whose estate plaintiff is now administrator.

There is no error. There will be judgment in this Court for the defendant for costs.

Pee Curiam.

Judgment affirmed.