Pelletier v. Saunders

• Decision Date: 30 June 1872
• Citation: Pelletier v. Saunders, 67 N.C. 261 (N.C. 1872)
• Court: North Carolina Supreme Court
• Parties: JOHN W. PELLETIER, Adm'r. v. E. W. SAUNDERS, Adm'r. et al.

67 N.C. 261

JOHN W. PELLETIER, Adm'r.

v.E. W. SAUNDERS, Adm'r. et al.

Supreme Court of North Carolina.

June Term, 1872.

Under the act of 1868-'69, chapter 113, sub chapter 5, sec. 1, enacting that “When the personal estate of a decedent is insufficient to pay debts, &c., the Executor or Administrator may apply to the Superior Court, by petition, to sell the real property of the decedent for the payment of debts;” it was held, that the word may, in this, as in every act imposing a duty, means shall, and that by Superior Court is meant the Clerk of said Court.

When the personal estate of a decedent is insufficient to pay his debts, and an administrator or executor refuses, or unduly delays, to apply to the Court for the sale of the real estate, the Clerk of the Superior Court as Probat Judge has jurisdiction, and may, at the instance of a creditor, compel such person to perform his duty.

[ Ex parte Moore, 64 N. C. 90; Sprinkle v. Hutchinson, 66 N. C. 450, cited and approved.]

This was a proceeding commenced before the Clerk of the Superior Court of CARTERET County, to compel the defendant Saunders to sell the real estate of his intestate for the payment of debts.

The summons was made returnable before the Clerk, and the plaintiff filed a complaint alleging, among other things, that the defendant's intestate was indebted to him by judgment obtained in the life time of the intestate, and that said intestate had conveyed lands to the other defendants, his daughters, for the purpose of defrauding creditors; that the personal estate is exhausted, and the administrator refuses to sell the land for the payment of his debt. Prays judgment that defendant be compelled to sell land for the purpose above set forth. Defendant demurred specially for want of jurisdiction, and the Clerk forwarded the pleadings to his Honor, Judge Clarke, who after considering the same sustained the demurrer; from which judgment plaintiff appealed.Haughton, for the plaintiff .

Faircloth, for the defendants .

RODMAN, J.

The question presented in this case is, whether a Probate Court at the instance of a creditor, can compel the administrator of the debtor to sell his lands, for the payment of his debts, after the personal estate has been exhausted.

The Act of 1868-'9 ch. 113, sub chapter 5. s. 1, p. 267, provides that in such a case the administrator may apply, to the Superior Court, for an order to sell the real property; but it makes no express provision for the relief of the creditor when the administrator refuses or unduly delays to apply.

The word may, here, as in every act imposing a duty, means shall. By Superior Court, is meant the Clerk of the Court, as appears by section 48, of the same chapter, and from S. 9, C. C. P., where that is defined to be the meaning of the phrase, in every case, except when some act is required to be done during Term time, or the Judge of the Court is otherwise expressly indicated.

So there is no difficulty about the right of the creditor to have the order made, or the duty of the administrator to apply for it, or the jurisdiction of the Court on his application.

The question then is reduced to this: Is there anything in the Act referred to, or in the Constitution and limited powers of the Probate Court, to disable it from...