Haywood v. Haywood

• Decision Date: 30 June 1878
• Citation: 79 N.C. 42
• Court: North Carolina Supreme Court
• Parties: ELIZABETH G. HAYWOOD, Executrix, v. E. BURKE HAYWOOD, Executor.

79 N.C. 42

ELIZABETH G. HAYWOOD, Executrix,

v.E. BURKE HAYWOOD, Executor.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION, in the nature of a Creditor's Bill brought by a creditor of the estate of defendant's testatrix, and heard, upon a motion by plaintiff for an injunction to restrain proceedings in a special proceeding brought by the defendant in the Probate Court for a sale of his testatrix real estate to make assets, at Spring Term, 1878, of WAKE Superior Court, before Seymour, J.

His Honor decided that the action was prematurely brought by plaintiff, and denied the motion for the injunction, and the plaintiff appealed.

Messrs. E. G. Haywood, Merrimon, Fuller & Ashe, J. B. Batchelor and A. W. Tourgee, for plaintiff .

Messrs. D. G. Fowle, Gilliam & Gatling, Battle & Mordecai, R. C. Badger and A. W. Haywood, for defendant .

FAIRCLOTH, J.

This is an action by the plaintiff as a creditor of defendant's testatrix, and in behalf of all other such creditors, brought to the Superior Court at term time praying for the necessary accounts, sale of lands, and for the payment of the assets to the said creditors according to their several amounts and rights, &c. After this action was in progress and defendants had entered their appearance, the defendant executor filed his petition in the Probate Court for the sale of the real estate of his testatrix for assets, and thereupon and upon notice the plaintiff moved for an order restraining further proceedings in the Probate Court, which was refused by His Honor. This we think was error.

The plaintiff is proceeding under the act of 1876-'77, ch. 241, § 6, which provides: “That in addition to the remedy by special proceeding as now provided by law, actions against executors, administrators, collectors and guardians may be brought originally to the Superior Court at term time, and in all such cases it shall be competent to the Court in which said actions shall be pending to order an account to be taken by such person or persons as said Court may designate, and to adjudge the application or distribution of the fund ascertained, or to grant other relief as the nature of the case may require.”

§ 7. “That all laws and clauses of laws coming in conflict with the provisions of this act be and the same are hereby repealed.”

The defendant claims the right to administer the estate in the Probate Court alone by special proceeding under the act, Bat. Rev. ch. 45, § 73. These acts, in our view, do not present an instance of a conflict, but of concurrent jurisdiction. The latter act instituted a new mode of settling the estates of deceased persons and was a necessary consequence of that excellent provision of our law requiring creditors to be paid pro rata.

The former act (1876-'77) does not necessarily change the mode of administering the estate materially, but only permits it to be done in another Court. “The rule is, where there are Courts of equal and concurrent jurisdiction, the Court possesses the case in which jurisdiction first attaches.” Childs v. Martin, 69 N. C., 126, where an inconvenience of a different rule is forcibly put by PEARSON, C. J. The wisdom of giving different Courts concurrent jurisdiction over the estates of deceased persons, is not for our consideration. It is our duty to declare the law as we find it written.

There is error in the interlocutory order appealed from.

BYNUM, J., Dissenting.

The unwisdom of the actof 1876-'77, under which this action was instituted, must be self-evident and apparent to all. Confessedly, every relief to which the plaintiff may be entitled in this Court is equally and more speedily attainable in the Court of Probate. The plaintiff in this Court can place herself on no higher ground than as a creditor in a creditor's bill; for in Ballard v. Kilpatrick, 71 N. C. 281, it is held that every action brought in the Probate Court to recover a debt against an administrator, is necessarily a creditor's bill, as all the creditors must be brought in and their claims ascertained before any judgment for the payment of any one can be given. As the latter Court is always open, and the Judge upon the spot, while the action in the Superior Court can only be brought in term time, and the Judge is only then present, it is evident that the Probate Court in which the inventory and other records pertaining to the estate are filed, affords superior facilities for adjusting the rights of creditors and others in the settlement of estates. Under the law now, executors and administrators can make no preference in the payment of debts, the statute designating the order in which they shall be paid; Hence, the plaintiff's action, so far as it seeks to contest the validity of certain judgments, (its only professed purpose,) is unnecessary, inasmuch as the same contest can be made with more speed and the same certainty of result in the Court of Probate. But this action, if sustained, does impair and I think infringe upon the exclusive jurisdiction of the Probate C...