Ralston v. Telfair

• Decision Date: 31 December 1839
• Citation: 22 N.C. 414,2 Dev. 414
• Court: North Carolina Supreme Court
• Parties: SAMUEL RALSTON, Adm'r of SAMUEL RALSTON Jnn'r v. HUGH TELFAIR et al.

2 Dev. & Bat.Eq. 414

22 N.C. 414

SAMUEL RALSTON, Adm'r of SAMUEL RALSTON Jnn'r

v.HUGH TELFAIR et al.

Supreme Court of North Carolina.

December Term, 1839.

Although it be admitted, that by actions of trover, assumpsit or account, an administrator, after the recall of the probate of a supposed will, might have remedy at law against one who acted as executor under it, yet equity has jurisdiction to decree an account in such case, as being a more complete remedy, and that particularly, where a part of the plaintiff's demand is of such a nature that there is no jurisdiction at law; and in such suit in equity, the defendant will be treated as an executor or trustee, and made chargeable with what came to his hands of the trust fund--and also with such part thereof as he may have released or disposed of for purposes of his own; and he must make good what may have been lost by his bad faith, or gross neglect; and he will be entitled to be credited with all sums paid in discharge of debts owing by the deceased; and for all payments of legacies under the supposed will, made before he had a reasonable ground of belief that the paper was not a will, as it purported to be; and he will also be entitled to a fair compensation for his services done to the estate in the administration of it.

If one, acting as executor under a supposed will in which he was interested beneficially as a residuary legatee, make an agreement with the surviving partner of his testator in relation to the partnership concern by which he surrenders to him a part of the effects of the concern, he will be resposible therefor, if the same be not for the advantage of the estate, to the administrator of the deceased, upon the recall of the probate of said will, although the administrator may have a remedy against such surviving partner.

An executor, acting under a supposed will in which slaves were directed to be emancipated, is not to be charged with the hires of such slaves, when they have been allowed to work for themselves, and the executor has made no profit from them.

The costs incurred by the defendants in a suit in equity, brought by a party claiming under a supposed will against the executors who claimed for themselves adversely to the plaintiffs under the same will, cannot be allowed the defendants, in a suit against them for an account, brought by the administrator of the deceased, after the recall of the probate of the said will. Nor can the cost of resisting the proceedings to recall the first probate and attempting to obtain a sccond, be so allowed; for although an executor, acting entirely or mainly for the benefit of other persons provided for in a supposed will, ought to be protected from loss by a faithful, or what was properly deemed a faithful, effort to carry into effect the apparent will, yet where the executor is solely, or almost solely interested under the will, he is to be taken as acting for himself, and if he fail, must pay the costs of the litigation.

It is not a fit matter of exception to a report, that one of the two commissioners who united in, and signed, it, afterwards altered it without the privity of the other. If the objection be true, in point of fact, the party should verify it on affidavit, and apply to have the whole report set aside, or restored to its first form.

Samuel Ralston, died in Pitt county, on the 11th day of February, 1829, and at the succeeding May Term of the County Court, the defendants, Telfair and Blount, offered for probate a paper writing, dated the 7th of February, 1829, purporting to be the will of Ralston, whereof they were the executors; and they procured the probate thereof, and letters testamentary, to be issued to them jointly. By that instrument, Ralston directed four of his slaves to be emancipated; and that another named Abram, should be sold to discharge a note then outstanding, which was given for the price of the said slave; and gave a legacy of $1,000 to Franklin Gorham. He also directed that Churchill Perkins should collect the debts due to him, and pay those he owed, and then “pay the remainder to the executors, to be disposed of as they may think fit;” and he then added, that “all the remainder of my property shall be disposed of as my executors think proper.” Samuel Ralston, the supposed testator, was a native of Ireland, and his next of kin was his father, Samuel Ralson, then resident in Ireland. He had no notice of the death of his son, or of the existence of the paper, until some months after probate had thereof; and upon hearing of the same, he filed his bill, in the Court of Equity, against the said Telfair and Blount, insisting, that by the true construction of the instrument, the executors received and held the personal estate in trust for him as next of kin, and not for the personal benefit of the executors themselves. To that bill the defendants put in answers, in which they insisted that they were the legatees in the said paper for their own benefit, and not in trust for the father. Upon the hearing of that cause, the bill was dismissed by the Court. Immediately thereafter, Samuel Ralston, the father, instituted a suit in the County Court, for the purpose of having the probate of the supposed will recalled; and it was finally so ordered in this court. Telfair and Blount then again offered the paper for probate, and a caveat was entered against it by Samuel Ralston, the father, and an issue made up thereon; and after a verdict, the paper was finally pronounced against; and the party deceased, declared to have died intestate. Administration was then taken by the present plaintiff, who received from Telfair and Blount, or took into his possession the slaves left by the intestate, and then filed this bill against the said persons, praying an account of the estate, all of which, as the bill alleged, came to their hands, and to a large amount; and that they might be decreed to pay to the plaintiff what might be found to be justly due to him, upon the taking of the proper accounts. The answers of the defendants, positively stated their full belief, at the time they procured the probate of the paper and acted under it, and resisted the recalling of the probate, that the same was the will of Samuel Ralston; and insisted that they acted honestly, and with a sincere desire to execute the will of their supposed testator, in defending all the before mentioned suits, and in administering the estate according to the provisions of the said supposed will; and they claimed to deduct out of the estate in their hands, or that came to their hands, such sums as they paid in discharge of the debts of the deceased, legacies given in the said instrument, and all costs and expenses to which they were put in defending those suits; and also that they were entitled to the usual and proper charges for collecting and settling the estate.

At the death of Samuel Ralston, he and Churchill Perkins, who was mentioned in the supposed will, were in co-partnership in a store in Pitt. Perkins entered a caveat against the probate of the will; and it was thereupon agreed by Telfair and Blount of the one part, and Perkins of the other, that Perkins should withdraw his caveat, should give up the privilege and compensation for collecting the debts due to Ralston, and deliver over the bonds and other evidences of those debts; and also should give up to Telfair and Blount the debts due to Ralston and Perkins, and surrender the books of accounts of those latter debts; and that therefor, and for the sum of $1,000, which Ralston owed Perkins, and for the interest of Perkins in the profits and effects of the firm of Ralston and Perkins, he, Perkins, should retain specific articles of merchandize, and certain bonds due to Ralston, to the value of more than $3,000; which was done according to the several stipulations.

To speed the cause, the parties consented to a reference to commissioners to take the accounts, but without prejudice to any objection on the part of the defendants to their liability in this suit. A report was made, to which each party took numerous exceptions; and by the agreement of the counsel, the cause was brought on to be heard, and at the same time, if the bill should be sustained, to be decided on the report and exceptions.

J. H. Bryan and The Attorney General for the plaintiff .

Badger and Iredell for the defendants .

RUFFIN, Chief Justice, having stated the case as above, proceeded as follows:

The jurisdiction of the Court of Equity in this case cannot, we think, be seriously questioned. Admitting that by actions of trover, assumpsit, or account, the administrator might have remedy at law against one who acted as executor under a will of which the probate has been recalled, because it was not a will, yet there must also be a jurisdiction here. The remedy in Equity is more complete in matters of account, which is the ground of the equitable cognizance of such cases. The Court of Equity has peculiar facilities of investigating accounts, to which, when long and complicated, a jury is altogether incompetent. But, it is said for the defendants, that here there is no complication and no mutual account, because the plaintiff has no accounts against the defendants. But the argument is not ingenuous. The plaintiff and defendants may not literally have accounts with each other; but the claim of the plaintiff against the defendants involves the administration, for about eight years, of a considerable estate; and that may be said necessarily to include numerous charges and discharges, and to constitute a case and matter of account fit to be settled in this Court. It stands much on the footing of a suit by an administrator de bonis non against the executor of a first administrator; in which, although trover or detinue might lie for the specific things, and assumpsit for money collected, it is the constant course to proceed in equity. If, in such a case, the plaintiff were to proceed by...