Henry v. Henry

• Decision Date: 31 December 1848
• Court: North Carolina Supreme Court
• Parties: ANN HENRY et al. v. CHARLES HENRY et al.

9 Ired. 278

31 N.C. 278

ANN HENRY et al.

v.CHARLES HENRY et al.

Supreme Court of North Carolina.

December Term, 1848.

Per NASH and PEARSON, J. The word “distributees” may be properly used in a petition, calling an administrator to an account, to denote those, who are entitled to succeed to an intestate's estate, under our Statute of distributions.

Per RUFFIN, C. J. The word “distributees” is not to be found in any English Dictionary or in any law book and conveys no definite idea. It therefore cannot be intended by the Court to mean those, who are entitled to distribution of an intestate's estate.

Appeal from the Superior Court of Law of New-Hanover County, at the Fall Term 1848, his Honor Judge MANLY presiding.

The petitioners allege, that they are the “heirs at law” and “distributees” of Hezekiah Bonham, who died intestate; that the defendants are the administrators of the said Bonham, and, as such, took into their possession negroes, bonds, money, and other personal property to a large amount. The prayer is for an account and distribution.

The defendants admit, that they are the administrators de bonis non of Bonham, but they allege, that administration upon his estate had been before granted to one Neil Henry, who died intestate, and that one Nathan Bonham is the administrator of the said Neil Henry. They, therefore, insist, that they are liable to account with the said Nathan Bonham, and not with the petitioners. Ann Henry or her children. They further allege, that Neil Henry committed a devastavit to the amount of about $800, and they are the sureties on his administration bond; “they maintain, that the estate of the said Neil Henry is responsible for this deficiency, and the defendants having the share of the estate of the said Hezekiah Bonham in their hands, to which the representatives are entitled, they have a right to retain the same, or so much thereof, as shall be sufficient to pay, satisfy, and discharge the said deficiency.”

A reference was made to the clerk to take an account. The clerk made a report, to which the defendants filed an exception. The case came on to be heard upon the petition, answer, report, and exception. The exception was overruled, and the report was confirmed, and a decree for the petitioners, from which the defendants appealed.

Strange and W. A. Wright, for the plaintiffs .

No counsel for the defendants.

PEARSON, J.

The petitioners claim the personal estate of the intestate, as his “heirs at law” and “distributees,” The word “heirs” is used to denote the persons, who are entitled, by descent, to the real estate of a deceased ancestor. It is appropriated to that purpose, and when used in pleading, in reference to personal estate, it has no meaning, and must be rejected as surplusage.

The other word, “distributees,” is new in pleading, but my brother NASH and myself deem it admissible to denote the persons, who are entitled, under the statute of distributions, to the personal estate of one, who is dead intestate.

No one word has heretofore been used for that purpose, and it has been necessary, in order to covey the idea, to make use of a paraphrase or set of words. “Widow” or “next of kin” are sometimes used in pleading, but these words are insufficient to convey the idea; for “next of kin” means nearest of kin, and does not include those, who are entitled by representation, The statute of distributions uses the words “next of kin of the intestate, who are in equal degree, and those who legally represent them.” To avoid the use of so many words, it is certainly desirable to have one word to convey the idea, in reference to personal estate; and as there is a necessity for making a word, we can see no objection to the word “distributees.” It commends itself, because it is new, and has not been appropriated to any other use, and is as fit and seemly a word, as feoffec, mortgagee, bargainee, bailee, endorsee &c. We know the word “distributee” is now in common use among the legal profession, and the fact that it has been adopted by the profession and the legislature, notwithstanding the severe rebuke given to it by Chief Justice HENDERSON in Croom v. Herring, 4 Hawks. 393, is a convincing proof that the necessity for a new word really existed.

But yielding to the petitioners the benefit of this word, they have not entitled themselves to a decree, because there is no proof, that they are distributees. The answer does not admit it, and no depositions have been taken; and we should reverse the decree made below, and dismiss the bill, but for the fact, that the answer is equally defective, and we feel disposed to extend great indulgence to proceedings commenced in the County Court. The answer does not state the ground, upon which the defendants maintain their right to retain the share of the estate, to which the representatives of Neil Henry are entitled. Nor does it state upon what ground, Neil Henry became entitled to a share of the estate of Hezekiah Bonham. We conjecture from what is stated, for the first time, in the decree, that Niel Henry was the husband of Ann Henry, the petitioner, and that the defendants wish to raise the question, whether, as husband, he was not entitled to her distributive share, but there are no allegations to raise the question and no proofs whatever.

The decree made below must be reversed, with costs in this Court, and we will then direct the cause to be remanded upon the motion of the petitioners, so as to let in amendments and give an opportunity to make proofs of the allegations. If no such motion is made at this or the next term, the petition will be dismissed.

RUFFIN, C. J.

Having the misfortune to differ in opinion with my Brothers on one point in the case, I must take the liberty of stating my reason, and to make myself the more intelligible, I will state the case as it appears in the record. This is a petition for an account and distribution of the personal estate of an intestate, Hezekiah Bonham. It was filed in the County Court by Ann Henry, Nathaniel Bonham, and six other persons, in December 1842, and it states: “That Hezekiah Bonham died seme years since intestate and possessed of or entitled to many negroes and to money, notes, bonds, and other personal property: that your petitioners are the distributees and heirs at law of the said Hezekiah: that after his death, administration of his personal estate was granted to Neil Henry, and that he had it in possession a considerable time longer than in law he was entitled to keep it, and then died; and that the said administration was thereupon granted to Charles Henry and Archibald F. Murphy: that the said estate required very little delay in settling with the heirs, your petitioners; for your petitioners show, that there were no difficulties or very little to prevent the said administrators from paying and settling with the heirs aforesaid: that the said Henry Murphy continues to detain the said negroes and other property, although called on by your petitioners to settle with them as the distributees and heirs as aforesaid.” The prayer is, that the administrators may be decreed to settle and pay over “to said heirs their portion, or to settle with the Court, so that your petitioners may receive their due proportions; and also that your worships will appoint three commissioners to divide the said negroes among the heirs as aforesaid,” and for general relief.

The answer admits that Neil Henry administered on the estate of the intestate Hezekiah Bonham, and states, that the defendants were his sureties for the administration, and that the said Neil died intestate and Nathan Bonham is his administrator. It then insists, that the defendants “are bound to account to the administrator of Neil Henry, and not the present petitioner, Ann Henry or her children;” and it proceeds farther thus. “These defendants show, that Neil Henry committed waste in the management of the estate to the amount of about $800, and is responsible to the distributees of the said Hezekiah therefor; and they maintain, that the estate of the said Neil is responsible for this deficiency, and that these defendants, having the share of the estate of the said Hezekiah in their hands, to which the representatives are entitled, they have a right to retain the same or so much thereof as...