Mahoney v. Stewart

• Decision Date: 25 October 1898
• Citation: 31 S.E. 384,123 N.C. 106
• Parties: MAHONEY et al. v. STEWART et al.
• Court: North Carolina Supreme Court

31 S.E. 384

123 N.C. 106

MAHONEY et al. v. STEWART et al.

Supreme Court of North Carolina

October 25, 1898

Appeal from superior court, Nash county; Brown, Judge.

Action by J. Mahoney and another against J. P. Stewart and M. C Braswell, administrator of the estate of M. C. Stewart, to restrain the administrator from making a misappropriation of the estate. Judgment for plaintiffs, and defendants appeal. Modified and affirmed.

When an administrator is solvent, injunction will not lie to restrain him from making an illegal misappropriation of his intestate's estate.

H. G Connor, for appellants.

Jacob Battle, for appellees.

FURCHES J.

M. C Stewart, who was the wife of the defendant J. P. Stewart died intestate in July, 1898, and M. C. Braswell, soon after her death, at the request of the husband, J. P. Stewart administered on the estate of the deceased wife. At the death of the intestate wife she was the owner of real estate of the estimated value of about $4,000, and of personal estate of the estimated value of about $5,500, and $5,000 of this consists of a life insurance policy, which the administrator has collected since her death. The real estate owned by the intestate wife at the time of her death was bought by her at public sale made by a commissioner under an order of court. Of the purchase money there remained an unpaid balance of $1,055.81, which prevented her from getting a deed for the same. This sum, at the request of the intestate, T. P. Braswell & Son paid off in April last, and the intestate and her husband, the defendant J. P. Stewart, executed to them their promissory note for the same, to be due on the 1st of December next. For the purpose of enabling the intestate to have said lands cultivated for the year 1898, and for a balance she owed them for advances made last year, she became indebted to said Braswell & Son to the amount of $2,085.14, for which she and her husband executed their promissory note to be due on the 1st of November next. To further secure the payment of these notes they executed a deed in trust on the lands of the feme defendant to one John M. Sherrod. These two debts and a debt of $450 due Thomas H. Battle, are all the debts the intestate owed, and are all that her estate is liable for, except funeral expenses and cost of administration. The intestate, at the time of her death, left her husband, J. P. Stewart, and three minor children; and the said M. C. Braswell has been appointed and has become the guardian of the minors. But J. P. Stewart, the surviving husband, is insolvent, and the plaintiffs have recovered several justices' judgments against him, which they have caused to be docketed, amounting in the aggregate to some $1,200, or more. Upon these judgments they have taken out supplementary proceedings, and have had them served on the administrator. In this proceeding the plaintiffs claim that the administrator is about to pay off and satisfy the two notes above specified, due to F. P. Braswell & Son, out of the money collected on the $5,000 insurance policy; that these debts and the debt of T. H. Battle, if so paid out of the personal estate, and the costs and expenses of administration, burial expenses, etc., will consume the whole of the personal estate of the intestate wife; and the insolvent husband, the debtor of the plaintiffs, would get nothing from said personal estate, and the plaintiffs would thereby be defrauded of their just debts. The plaintiffs say that the administrator has no right to do this; that the debts to T. P. Braswell & Son and the debt to T. H. Battle, also secured by mortgage, be paid out of the land so mortgaged as security for the payment of said debts, thereby relieving the personal assets from the payment of the same; that the insolvent husband might get the personal estate out of which the plaintiffs and other creditors of the insolvent husband might make their debts which they hold against him. There is no suggestion that the administrator is insolvent, or that he has not an abundantly good bond. In fact, it was stated and admitted on the argument that the administrator was a good man, was entirely solvent, and that his bond was in the sum of $11,000, and was abundantly...