Hodge v. Hodge

• Decision Date: 31 January 1875
• Citation: 72 N.C. 616
• Court: North Carolina Supreme Court
• Parties: FRANCIS HODGE v. MADISON HODGE.

72 N.C. 616

FRANCIS HODGE

v.MADISON HODGE.

Supreme Court of North Carolina.

January Term, 1875.

The Probate Court has exclusive original jurisdiction of Special Proceedings to recover legacies and distributive shares:

This rule is subject to the exception, that when the assent of the executor amounts to an express or implied promise to pay a legacy or distributive share, it becomes a debt, recoverable like any other debt, in the Superior Court.

Although it is a general rule that the assent of the executor to the first taker of a legacy, limited over on a particular estate by way of remainder, or executory bequest, is an assent to all persons in remainder, yet such assent cannot be construed into a promise on the part of the executor to pay the legacy a second time to the remainderman, when he has once paid it to the first legatee.

The Superior Court did not acquire original jurisdiction of actions to recover legacies by the passage of the Act of 1872-'73, entitled “An Act to cure defects in certain judicial proceedings arising from mistakes of jurisdiction and other causes.”

Where personal chattels are limited to one for life, with a limitation over, the first legatee cannot be compelled to give security for the delivery of such chattels to the remainderman, after the determination of his life estate, and an executor commits no devastavit in paying such legacy to the first legatee without security.

(The cases of Miller v. Reams, 65 N. C. Rep. 67; Williams v. Cotton, 3 Jones Eq. 395; Camp v. Smith, 68 N. C. Rep. 537.)

CIVIL ACTION for the recovery of a legacy, tried before Watts, J., at Fall Term, 1873, WAKE Superior Court.

The plaintiff, in his complaint, alleged that by the will of William T. Hodge, the sum of twelve hundred and fifty dollars was given to the use and benefit of Henderson A Hodge for life, and then to the use and benefit of the plaintiff for life, and then to be divided between all the children of Henderson A. Hodge; that by said will the defendant, Madison C. Hodge, and Henderson A. Hodge were appointed his executors and duly qualified as such; that the defendant collected the money of the estate and had the absolute control thereof; that the defendant assented to said legacy and paid over said sum to Henderson A. Hodge, his co-executor, and also the husband of plaintiff, without requiring of him any security.

Plaintiff further alleged that Henderson A. Hodge died on the 17th of September, 1870, insolvent, and plaintiff qualified as his executrix; that the sum of $142.62 had been paid for his estate towards said legacy, and but little, if anything more can be expected from this source.

The defendant demurred to the complaint, insisting that the Superior Court had no original jurisdiction thereof, because the action was brought against the defendant as surviving executor of the last will and testament of W. T. Hodge, to recover a legacy given the plaintiff for life by said last will and testament, and the summons therein made returnable, and the complaint therein filed before the Judge of the Superior Court, sitting in term time, whereas the summons should have been made returnable before, and the complaint filed in the Probate Court.

His Honor overruled the demurrer to the jurisdiction, and ordered the defendant to answer, whereupon the defendant appealed.

Haywood, for the appellant .

Fowle, contra .

SETTLE, J.

This is an action to recover a legacy, made returnable before the Court at the regular Fall Term, 1873.

There is a demurrer to the jurisdiction. The Probate Court has exclusive original jurisdiction of special proceedings to recover legacies and distributive shares.

This rule is subject to the exception, that when the assent of the executor amounts to an express or implied promise to pay a legacy or distributive share, it becomes a debt, recoverable like any other debt in the Superior Court. Miller v. Barnes, 65 N. C. Rep. 67.

And while it is a general rule that the assent of the executor to the first taker of a legacy, limited over on a particular estate, by way of remainder or executory bequest, is an assent to all persons in remander; yet such assent cannot be construed to amount to a promise on the part of the executor to pay the legacy a second time to the remainderman, when he has once paid it to the first legatee.

Since then there was no promise which would take this case out of the general rule, the jurisdiction remains with the Probate Court, unless the want of jurisdiction in the Superior Court is cured by the act of 1872-'73, chap. 187, entitled “An act to cure defects in certain judicial proceedings arising from mistakes of jurisdiction and other causes,” ratified the 3d...