Fairbairn v. Fisher

• Decision Date: 30 June 1859
• Citation: 4 Jones 390,57 N.C. 390
• Court: North Carolina Supreme Court
• Parties: ROBERT FAIRBAIRN v. GEORGE F. FISHER.

4 Jones Eq. 390

57 N.C. 390

ROBERT FAIRBAIRN

v.GEORGE F. FISHER.

Supreme Court of North Carolina.

June Term, 1859.

The poverty of an executor, which existed at the testator's death, without mal-administration, or loss, or danger of loss, from misconduct or negligence, will not authorise a Court of Equity to put him under a bond to perform the trust, or, as an alternative, give up the office.

A misunderstanding between two executors, added to the fact that one is a man of limited means, it not appearing that any detriment had happened to the estate from their disagreement, is no reason why the business should be taken out of their hands, and committed to a receiver.

It would be improper for a Court of Equity to take part of the estate from one executor and give it to a receiver for him to co-operate with the other executor. A receiver must be of the whole estate.

APPEAL from an interlocutory order of the Court of Equity of Craven County.

The bill was filed to recover from the executors of Thomas Fairbairn, all the residue of his estate, after paying some pecuniary legacies, which is given to the plaintiff by the will of the said Thomas, and, as incident thereto, to take the property out of the hands of the executors, and put it into those of a receiver. The allegations on which the latter application is based, are:

1st. That they are both using the means of the estate for their own purposes.

2nd. That an angry hostility has arisen between the two executors, which has resulted, and is likely to result, in detriment to the estate.

3rd. That the defendant, Fisher, hath not property at all adequate to make good to the estate any amount which he may squander and misapply.

To show the injury resulting from this dissention of the executors, the bill alleges that the defendant, Fisher, without any pretext or authority in law, seized and caused to be imprisoned, a negro man belonging to the estate, named Daniel, and proceeded to advertise him for sale, whereupon, his coexecutor, Williams, filed a bill in the Court of Equity for an injunction to restrain the sale; that by this controversy, the estate was run to costs, and that when it was ended, the estate was subjected to considerable loss, and the plaintiff insists that, as this arose from the dissention of the executors, it affords a ground for taking the administration out of their hands, and he protests that the estate ought not to bear the burden of he expense of this proceeding, but that it should fall upon the executors who caused it; or on one of them.

With the bill, went out the following order of the Judge of the Court of Equity:

“Upon the complainants entering into bond, with surety, satisfactory to the master, in the penal sum of $500, with the usual conditions for injunctions and prosecution bonds, the said clerk and master in Equity, for the county of Craven, will issue writs to restrain the defendants, Williams and Fisher, respectively, from any further execution of their testator's will, until they respectively file bonds with surety, in the master's office, each in the penal sum of $12.000, with conditions for the performance of any and every decree which may be rendered against them, or either of them--either in the progress, or at the final hearing of the cause. In case the said executors neglect, or refuse for twenty days to file such bonds, it is further ordered, that Fred. C. Roberts, the master, be a receiver of said estate, and that he be charged with the collection and custody of the same, until the further order of the Court of Equity for Craven: And to this end, it is ordered, the said executor or executors, failing or refusing to file the bonds aforesaid, shall, forthwith (at the expiration of said twenty days,) make surrender, under oath, to said receiver, of the funds, effects and evidences of debt of every description, belonging to their testator's estate, accompanied by an account.”

Both the defendants answered, but as only the case of the defendant, Fisher, is brought up by the appeal, it is necessary to notice his answer alone. He answers and admits that he is not in affluent circumstances, but says he is in good credit as a merchant, and is solvent; that he is in a better condition now than he was when appointed executor; that the office was conferred on him by the testator from the confidence which he reposed in his integrity, and that he has not abused that confidence: that he has not used the money of the estate for his private purposes, except a sum about equal to what his commissions will probably be; that he has kept a full account of his administration, and that all the money received by him, has been deposited in the bank of the State, at Newbern, and that he has been prevented from settling with the plaintiff, because,...