Hilborn v. Hester

• Decision Date: 31 December 1851
• Parties: GEORGE HILBORN v. EPHRAIM HESTER.
• Court: North Carolina Supreme Court

8 Ired.Eq. 55

43 N.C. 55

GEORGE HILBORN

v.EPHRAIM HESTER.

Supreme Court of North Carolina.

December Term, 1851.

Although a husband is entitled exclusively to administration on his wife's estate, yet he cannot recover, as administrator, a chose in action, for which he had received full satisfaction previously to the grant of administration, unless it appears there are debts due from the wife's estate, and then an account will be directed.

So, if he has, intentionally, and with his privity and concurrence, permitted another to receive the amount of such choses in action of his deceased wife.

Cause removed from the Court of Equity of Bladen County, at the Fall Term, 1851.

John Hester died in 1819, in Bladen, having made his will, in which he made the following dispositions: “I will, that my wife, Comfort, live on the plantation her life time, and also my negro, Jane, to wait on her for her life time; and that she be maintained out of the whole of the property. I give to my daughter, Hannah, a negro girl named Clarissa, and the balance of my negroes to be equally divided between all my children, except Hannah.” He also left several tracts of land, which he devised to his different children, who were nine in number; and he appointed the defendant, his son Ephraim, the executor, and he proved the will. One of the children was named Mary, then the wife of the present plaintiff. In February, 1820, the executor and the other children divided the slaves, and other effects, except Jane, and the others, including the plaintiff, gave to the executor an obligation, in which they acknowledged they had received their shares of the estate, and bound themselves to pay their proportions of any demands against the estate. Not long afterwards, but at what particular day does not appear, the plaintiff's wife died leaving an only child, named Eliza, very young. The executor assented to the legacy of Jane to the widow, who kept the slave in her possession on the plantation for eight or ten years, and until Jane had two children. Then a person took the two children, and Mrs. hester brought detinue for them, and on the trial of the suit, the present plaintiff was introduced as a witness for her, and on objection to his competency, on the ground of his interest in the slaves, he swore that he had none, and that the share, to which his deceased wife had been entitled, then belonged to his daughter, Eliza, and thereupon, he was examined in chief, and the negroes were recovered. Very shortly afterwards, Mrs. Hester, having become very old and infirm, was taken by her son, the defendant, to his house to reside, and she carried the three negroes with her, and she afterwards lived in the defendant's family, and was maintained by him until her death in 1837. In 1832, the plaintiff was arrested by a creditor, and took the oath of insolvency in Bladen, without filing any schedule, and soon afterwards, procured one Richard Lewis to be appointed the guardian of his infant daughter, Eliza, and then he removed to Alabama, and carried his daughter with him. After the death of Mrs. Hester, Lewis claimed on behalf of his ward, a share of the negroes and some of the old furniture left by Mrs. Hester, and by the consent of the defendant, and of the other children of the testator, who were living here, he, Lewis, administered on the estate of Mrs. Hester, and sold Jane and her two children, as his intestate's property, for the sum of $1528, and in 1840, he paid the sum of $50 as the share of the said Eliza, after deducting the charges to Lemuel J. Lucas, who resided also in Alabama, and had...