Opinion
(December Term, 1848.)
1. The act of 1715 is no bar to the right of a legatee to have an account.
2. The presumption of satisfaction or abandonment under the act of 1828, Rev. Stat., ch. 65, sec. 14, does not apply to the equitable interest of legatees and persons entitled to distribution.
CAUSE removed from the Court of Equity of SURRY, at Spring Term, 1848.
Morehead for plaintiffs.
Borden and Iredell for defendants.
The bill alleges that in 1815 Jacob McCraw died, leaving a will, duly executed to pass real and personal estate. The defendants Fleming and James McCraw, two of the executors named, proved the will, and qualified as executors, and took into possession the real and personal estate, including several tracts of land, many negroes, and other personal estate of great value.
The bill, among other things, gives to Elizabeth McCraw, the (349) widow of the testator, the tract of land on which he lived; the following negroes, Jim, etc.; stock of every description, and many other articles, during her life; and at her death to be equally divided among the children of the testator, the land excepted. By the residuary clause several tracts of land are to be sold, and the proceeds, together with all the balance of the estate, are to be divided among all the testator's "heirs" after the payment of debts.
The executors sold several of the negroes belonging to Elizabeth McCraw, sold the land, and collected the debts, and failed to account for the moneys received. In 1828, James McCraw, one of the executors, died intestate, and the defendant Neill Davis administered upon his estate. In 1836, Elizabeth McCraw died, and the defendant Fleming then took possession of the balance of the negroes and property given to her for life, sold the same, and failed to account.
The plaintiffs are children and personal representatives of deceased children of the testator, and claim to be entitled as residuary legatees. The prayer is for an account and distribution.
Judgment pro confesso is taken against Fleming and such of the children as are made defendants.
The defendant Davis, in his answer, resists a decree for an account, upon four grounds: (1) He insists that, as administrator of James McCraw, who was one of the executors, and who died in 1828, he is not bound to account with the legatees of the testator, but is liable to account with the surviving executor, Fleming. (2) That the act of 1715 is a bar to the right of the plaintiffs. (3) That the act of 1826 raises a presumption of satisfaction or abandonment of the plaintiffs' equitable interest as residuary legatees. (4) That in 1824, Jacob (350) A. McCraw, one of the plaintiffs, filed a petition against Fleming and James McCraw, as executors, for an account of the estate of the testator, which petition, after pending for several years, was dismissed at the cost of the petitioner; and that a petition to rehear was afterwards filed, which was also dismissed at the cost of the petitioner; and the defendant insists that these proceedings are a bar to any recovery on the part of the said Jacob A. McCraw.
The plaintiffs, who are the children of the testator, are entitled to an account. The first objection is clearly untenable. The second and third are also untenable.
In Blount v. Salter, 22 N.C. 218, it is held that the act of 1715 is no bar to the right of a legatee to have an account, and in the same case it is decided that the presumption of satisfaction or abandonment, under the act of 1828, does not apply to the equitable interest of legatees and persons entitled to distribution. Bailey v. Shannonhouse, 16 N.C. 416, is also an authority in point as to the act of 1715. The fourth objection only applies to one of the plaintiffs, and is not tenable as to him. There was no adjudication. The proceedings were dismissed for the want of security for the prosecution.
There must be a decree for an account. The master will distinguish between the receipts and disbursements before and after the death of James McCraw.
The bill must be dismissed as to the plaintiffs who are the children of George McCraw. His share can only be claimed by his personal representative, when one is appointed.
The bill must also be dismissed as to the defendants who are the children of George McCraw, and as to the defendants who are the children of Neill McCraw and of James McCraw. they are not proper parties. The respective administrators represent their interests. (351)
PER CURIAM. Decreed accordingly.
Cited: Wilkerson v. Dunn, 52 N.C. 129; Wyrick v. Wyrick, 106 N.C. 84.