Opinion
July Term, 1818.
From Rutherford.
1. Executors and Administrators. An account cannot be decreed of the personal estate of a deceased person without making the executor or administrator a party to the petition.
2. Executors de son tort are not answerable to the distributees on a petition filed by them as against a rightful executor; for if a decree should be made for petitioners and they receive the property under it, they thereby become themselves executors de son tort, and a court of equity will never become accessory to such and act, or so far disregard the rights of creditors.
THIS was a petition filed in the County Court for an account and distribution of the personal estate of Judith Goode, who died intestate. The petition charged that the petitioners and defendants were the next of kin of the said Judith, and entitled to distribution of her estate. That the said Judith died intestate, and the defendants took the estate into their hands as executors, and were bound to distribute it. The (336) defendants filed their answer, and the cause was heard in the County Court, and dismissed; from which decree there was an appeal to the Superior Court, when the decree of the County Court was affirmed, upon the ground that no administration of the estate of the intestate had been taken. From that decree the petitioners appealed to this Court.
The question in this case is, whether an account can be decreed of the personal estate of a deceased person without making the executor or administrator a party to the bill, and we think it cannot. Humphreys v. Humphreys, 3 P. Wms., 348, is a direct authority to this point. It is true that here the defendants are called executors in the petition; but the petition also charges that Judith Goode died intestate. This, therefore, is an attempt to make executors de son tort answerable to distributees, which we are satisfied, from the reasons given in the case just cited, ought not to be done. There is another consideration that has great weight with us, which is, that if a decree should be made for the petitioners, and they receive the property under it, they would themselves thereby become executors de son tort, which implies a wrongful interference with the property of the intestate. A court of equity can never be accessory to such an act, or so far disregard the rights of creditors. The decree of the Superior Court must be affirmed.
Cited: Spruill v. Johnston, 30 N.C. 399; Ward v. Huggins, 37 N.C. 136.
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