York Et Ux v. Mccall

Decision Date30 October 1912
Citation76 S.E. 84,160 N.C. 276
CourtNorth Carolina Supreme Court
PartiesYORK et ux. v. McCALL.
1. Executors and Administrators (§§ 473, 474*)—Legacies—Petition to Recover— Proof Required.

A legacy can be recovered in a proceeding against an executor under Revisal, § 144, only on proof that assets applicable to the legacy have come into his hands, unless it appears that he has assented to the legacy or has admitted possession of assets.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2041-2060; Dec. Dig. §§ 473, 474.*]

2. Executors and Administrators (§§ 473, 474*)—Legacies—Proceeding to Recover —Pleading.

In a proceeding against an executor under Revisal, § 144, defendant executor is properly compelled to account, if the answer does not raise an issue in bar of an accounting.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2041-2060; Dec. Dig. §§ 473, 474.*]

3. Executors and Administrators (§§ 473, 474*)—Legacies—Proceeding to Recover —Pleading.

In a proceeding under Revisal, § 144, to recover a legacy an answer by the executor stating that no assets have come to hand, that none could be acquired by him, and that all the general personalty left by testator, was consumed by his family for their support before defendant qualified, is insufficient as a plea in bar of an accounting.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2041-2060; Dec. Dig. §§ 473, 474.*]

4. Clerks of Courts (§ 66*)—Receivers— Power to Appoint.

In a proceeding under Revisal. § 144, against an executor to recover a legacy, the clerk of the superior court has no power to appoint a receiver; appointment of a receiver generally being required to be made by a judge.

[Ed. Note.—For other cases, see Clerks of Courts, Cent. Dig. §§ 98-100; Dec. Dig. § 66.*]

5. Receivers (§ 35*)—Notice—Necessity.

Appointment of a receiver for property without notice to the owner is improper.

[Ed. Note.—For other cases, see Receivers, Cent. Dig. §§ 54-60; Dec. Dig. § 35.*]

6. Executors and Administrators (§§ 473, 474*)—Legacies—Proceeding to Recover —Parties.

In a proceeding under Revisal, § 144, to recover a legacy, persons whose interests under the will, will be affected by the order or judgment are necessary parties.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 2041-2060; Dec. Dig. §§ 473, 474.*]

Appeal from Superior Court, Scotland County; H. W. Whedbee, Judge.

Petition by W. E. York and another against Mary McCall, J. B. McCall's executrix, to recover a legacy. From a judgment in the Superior Court remanding the cause to the clerk with instructions to settle and certify issues to the Superior Court for a jury trial, plaintiffs appeal. Modified.

The suit was a petition to recover a legacy of $500 in the will of J. B. McCall, deceased to his daughter Maggie, now married to her coplaintiff, W. E. York. This legacy by the terms of the will was payable primarily upon the "rents of the home place" under lease at the time of his death to defendant, the duration and terms of which do not appear, and at the termination of the lease the same homestead was devised chiefly to others. Before the clerk on perusal of the pleadings there was judgment for the legacy, appointing a receiver to take charge of said home place and pay said legacy from rents. On the hearing in the superior court, his honor, being of opinion that there were issues arising on the pleadings to be determined, entered judgment remanding the cause, with directions to settle and certify the issues to the superior court for trial by jury in term. Plaintiff excepted and appealed.

Walter H. Neal, of Laurinburg, for appellants.

HOKE, J. [1] By express enactment in this state (Rev. § 144) a petition may be entered before the clerk of the superior court for recovery of a legacy and prosecuted as in other cases of special proceedings. Unless, however, the executor has assented to the legacy or the admission of assets otherwise is made to appear, a recovery can be had only on proof that assets have come into the hands of the executor applicable to the claim, or that they should have been acquired and held in the proper performance of the duties incident to the position. Cross-well, Exec. & Admin, p. 360; Pritchard on Wills, § 783. According to the terms of the will annexed as an exhibit and made a part of the complaint, this is what is called a demonstrative legacy, payable primarily out of the "rents of the home place, " and then under certain contingencies payable by the executrix as part owner of a place in South Carolina known as the "Neck place, " and, in case of both sources failing and under principles of law applicable, out of the general assets of the estate. 1 Underhill, § 406, p. 555; 18 A. & E. (2d Ed.) p. 722. From a perusal of pleadings in the cause it appears that Jas. B. McCall, the testator, died in 1894, having made his last will and testament, and appointing his daughter, Mary, the present defendant, as executrix; that the testator at the time of his death owned the "home place, " which was then under a lease to this daughter. He also had a claim on the "Neck place, " a tract of land in South Carolina, and which has since been acquired by this daughter under the terms of the will, and also a lot of personal property. By the terms of the will the executor is charged with the duty of paying plaintiff's legacy from funds designated and in hand, and with the proper administration of assetsavailable, or which should have been, in the proper performance of her duties, including the rents of the "home place" certainly to the extent of those rents that were due and payable under the lease.

There is nothing in the answer which raises any issue in bar of an accounting by defendant, and it is only pleas of that character which prevent such a course. Oldam v. Rieger, 145 N. C. 254, 58 S. E. 1091; Jones v. Wooten, 137 N. C. 421, 49 S. E. 915; Roy-ster v. Wright, 118 N. C. 152, 24 S. E. 746; Carr v. Askew, 94 N. C. 194. It is true she avers in general terms that no assets have have come to hand, and that none could have been acquired by her, and, further, that the general personal property left by the testator was all consumed by the family and used in their support prior to defendant's qualifying, but on the facts presented and admitted in the pleadings these averments only raise questions of fact affecting the...

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