Cardwell's Heirs v. Brodic
| Decision Date | 31 December 1805 |
| Citation | 5 N.C. 97 |
| Court | North Carolina Supreme Court |
| Parties | CARDWELL'S HEIRS v. BRODIC. |
Judgment of execution against the real estate of a deceased debtor in the hands of the heirs and devisees, reversed, because it was not found that the executrix had fully administered, had no assets or not sufficient to satisfy the creditor's demand.
THIS was a writ of error brought by the plaintiffs to reverse a judgment recovered against them by defendant in Granville County Court. John Brodic, the defendant, brought an action of trespass on the case against Mary Cardwell, executrix of Thomas Cardwell's will, and the said executrix failing to make any defense, Brodic took judgment by default, and damages were assessed upon a writ of inquiry. A fieri facias was sued out against the goods and chattels of Thomas Cardwell, deceased, in the hands of his executrix, the said Mary, which was returned by the sheriff to November Term, 1805, of Granville County Court, having the sheriff's indorsement thereon "that no goods nor chattels of Thomas Cardwell were to be found." Brodic then sued out a scire facias against the heirs at law and devisees of Thomas Cardwell, deceased, to show cause why he should not have judgment of execution for his debt and costs against the real estate of the said Thomas Cardwell, deceased, in the hands of the said heirs and devisees. Upon this scire facias, judgment was rendered in favor of Brodic; and some time afterwards the said heirs and devisees brought a writ of error to reverse this judgment. They assigned for error, first, that it did not appear from the record and proceedings in the cause that the executrix, Mary Card-well, had fully administered the estate of her testator, or that she had no assets, or not sufficient to satisfy the recovery of the defendant in error in the suit brought against her; second, that the jury did not find upon the trial of the said suit that the said executrix had fully administered, or had no assets or not sufficient to satisfy the recovery aforesaid. The defendant in error having pleaded that there was no error in the proceedings in the cause, etc., the case was sent to this Court for the opinion of the judges.
BY THE COURT. The act of 1784, ch. 11, was passed to remove doubts "which were entertained whether the real estates of deceased debtors in the hands of their heirs or devisees should be subject to the payment of debts upon judgments obtained
against the executors or...
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