Hailey v. Wheeler

• Decision Date: 31 December 1856
• Citation: 4 Jones 159,49 N.C. 159
• Court: North Carolina Supreme Court
• Parties: JOHN HAILEY v. BENJAMIN WHEELER, EXECUTOR.

4 Jones (NC) 159

49 N.C. 159

JOHN HAILEY

v.BENJAMIN WHEELER, EXECUTOR.

Supreme Court of North Carolina.

December Term, 1856.

No action can be maintained against an executor, as executor, for money had and received by him, after the death of the testator.

Where the plaintiff declared against the defendant, as executor, for money had and received by him, as executor, the defendant may either demur for the badness of the count, or he may move for a nonsuit, or claim a verdict on the trial of the general issue, because the allegation has not been proved; and the principle is not varied by the fact, that the allegation, in its nature, is not susceptible of being proved.

ACTION of ASSUMPSIT, tried before BAILEY, Judge, at a Special Term, November, 1856, of Granville Superior Court.

The plaintiff declared, first, upon the following special contract between himself and the defendant's testatrix, viz., the plaintiff was to perform such work upon the farm of defendant's testatrix as she should require of him, and attend, generally, to all the business on her farm, and, as a compensation, was to have the privilege of preparing a lot on said farm, and cultivating the same in tobacco for himself.

Secondly. He declared on the common count for money had and received by the testatrix for plaintiff's use.

Thirdly. For money had and received by the defendant, as executor, to plaintiff's use.

The defendant pleaded the general issue.

On the trial, it was admitted that defendant's testatrix died in the month of February, 1853. It was proved that the testatrix owned a small farm, on which she resided, and the defendant lived with her, and that while so residing together, the contract, as alleged in the first count, was made between them; that in the year 1852, the plaintiff, in pursuance of such contract, attended to, and managed all the business of the farm, and did such work as the testatrix required of him; that during that year, he cultivated for himself, and on his own account, a lot in tobacco; that he cut, cured and housed the tobacco, in his own barn, on the premises, which the testatrix never claimed, nor interferred with; that after the testatrix's death, the defendant, as her executor, seized and sold the tobacco in question, as a part of her estate, without the plaintiff's consent.

His Honor instructed the jury that, according to the evidence, in the case, the plaintiff was not entitled to recover upon either count of his declaration. Plaintiff excepted.

Verdict for the defendant. Judgment and appeal.

Miller, for plaintiff .

Graham and R. B. Gilliam, for defendant .

PEARSON, J.

The plaintiff, beyond question, may waive the tort committed by the defendant, and maintain an action for money had and received. But in that action the declaration would be in the debet and detinet, upon a promise of the defendant personally; whereas, in this action, the declaration is in the detinet only, upon the promise of the defendant in his representative capacity as executor, to which he may plead “fully administered,” and upon which the judgment would be de bonis testatoris. We concur with his Honor. The evidence does not support the allegation. There is a fatal variance between the allegata and probata.

No authority is found to support the position that an action can be maintained against a defendant, as executor, for money had and received by him, after the death of the testator. It would do violence to all principle. It is the duty of an executor to pay off the debts of his testator in a prescribed order. It is not possible to conceive how a debt of the testator can be created by matter occurring wholly in the executor's time. If an executor make an express contract in reference to the property of the estate,--as if he employs one to cry the sale of the property as auctioneer,--this is not a debt of the testator. It is...