#### TEMPIE G. PLACE, Administratrix of J. E. PLACE, v. R. H. PLACE, J. L. PLACE, et al.

(Filed 20 June, 1934.)

1. Judgments M a — Question litigated and not form of issues held to determine effect of judgment.

A widow, executrix of her husband’s estate, instituted proceedings to recover from the estate the proceeds of sale of land formerly held by her and her husband by entireties, which sale was made by her husband and the proceeds thereof in his possession at the time of his death, the widow claiming that the right of survivorship attached to the funds. Judgment was entered that she recover the sum demanded. Thereafter the widow instituted a proceeding to have lands sold to make assets to pay the judgment. Meld, the real question litigated and not the issues upon which the judgment was entered is determinative of whether the judgment was solely against the proceeds of sale or a general claim against the estate to satisfy -which lands of the estate may be sold.

2. Executors and Administrators D d — Funds held to have come into hands of executrix as trustee and beneficiary had election to follow funds or assert general claim against estate.

A widow, executrix of her husband’s estate, instituted special proceedings against the other heirs and distributees of the estate to recover from the estate the proceeds of sale of lands formerly held by the widow and husband by entireties, the proceeds of sale being in the husband’s possession at the date of his death, and the widow claiming that the right of survivorship attached to the funds. Judgment was entered in her favor upon a simple issue of indebtedness and the judgment stipulated that the sale of assets was not necessary to pay the claim. Meld, the proceeds of the sale came into her hands as executrix as trustee for herself as the rightful beneficiary, and were sufficient to furnish the basis for a creditor’s claim and an action in assumpsit, and submission of the issues in the action indicated that she had elected to bring her action m indebitatus assumpsit for money had and received, and the judgment constituted a general claim against the estate for payment of which she was entitled to institute the proceedings to sell land to make assets, a cestui que trust having the right, in his election, to proceed against the trustee personally rather than seek to trace the funds.

3. Judgments L b: Executors and Administrators E a — Judgment that lands need not be sold to make assets held interlocutory and not to bar proceeding for sale of lands upon insufficiency of personalty.

A judgment against an estate on a general claim is conclusive as to the amount of the claim, but the adjudication that the personalty is sufficient to pay same and that it is not necessary to sell land to make assets for its payment is an interlocutory judgment and will not bar a subsequent proceeding to sell lands to make assets for its payment where the personalty, by reason of subsequent losses, is insufficient to pay the judgment.

*677Special proceeding instituted before tbe clerk and transferred to civil issue docket and tried before Sinclair, J., at February Term, 1934, of Dukham.

Reversed.

Tbe petitioner is tbe widow and administratrix of J. E. Place, deceased, wbo died 19 February, 1929, and left surviving biro, collateral beirs, wbo are tbe respondents in tbis proceeding.

In a special proceeding instituted 1 June, 1929, and transferred to tbe civil issue docket and tried before Judge Daniels, at September Term, 1931, judgment was awarded tbe petitioner for tbe sum of $2,750 to be paid by tbe administratrix, and it was therein further adjudged that there was no necessity to sell real estate to make assets to pay tbis sum. Tbis judgment was based upon tbe petitioner’s right of survivorship in tbe proceeds of a sale of certain real estate of which she and her husband were seized by the entireties. At tbe time of bis death these proceeds were deposited in a bank to tbe credit of J. E. Place.

Tbis proceeding was instituted by tbe petitioner on 7 July, 1932, as tbe administratrix of J. E. Place, against bis beirs at law to have real estate sold to make assets to satisfy tbe judgment obtained in 1931. Tbe respondents reply that tbe claim of tbe petitioner was never against tbe estate of J. E. Place, but only upon tbe fund which represented tbe sale price of tbe land held by him and bis wife by entirety.

From tbe judgment of Judge Daniels, notice of appeal to tbe Supreme Court was given by tbe respondents, which prevented tbe administratrix from paying tbe judgment from tbe assets then in her bands; and before tbe respondents bad abandoned said appeal tbe assets in tbe bands of tbe administratrix bad diminished in value, through bank failures and otherwise, to tbe extent that they were insufficient to pay said judgment, there being only $812.50 available for that purpose, which amount was paid on said judgment, thereby reducing the amount due thereon to $1,937.50.

From tbe judgment of tbe court that she take nothing by her action, tbe petitioner appealed to tbe Supreme Court.

R. 0. Everett and E. L. Gulbreth for 'petitioner.

Brawley & Gantt and Yarborough & Yarborough for respondents.

ScheNck, J.

Tbe court below held “That tbe form of tbe issues submitted to tbe jury in tbe other action is not conclusive, but that tbe court should look to tbe real question litigated and decided as shown by tbe pleadings, evidence and charge of tbe court.” In tbis conclusion of bis Honor we concur.

Tbe court further held “That tbe claim of Tempie G. Place in said action was not a creditor’s claim against tbe estate of J. E. Place, but *678was a claim against the fund representing the proceeds of tbe sale of the bouse and lot held by entireties, to wbicb she claimed the right of survivorship still attached, and that she, and not the estate, must bear any loss resulting from the failure of the bank in which said fund was deposited.” In this conclusion we think his Honor erred. When J. E. Place died with the proceeds of the sale of land held by the entireties in his possession, these proceeds passed to his estate and were held by his estate as trustee for the survivor, namely, his wife, Tempie Gr. Place; and when his wife qualified as his administratrix these proceeds came into her hands as trustee for the rightful beneficiary thereof. These proceeds furnished a basis for a creditor’s claim, and for an action in assumpsit, in favor of the beneficiary thereof, namely, Tempie Gr. Place, against the trustee, namely, Tempie Gr. Place, administratrix of the estate of J. E. Place, deceased. We conclude from the facts in this proceeding that the proceeding in which Judge Daniels rendered judgment was in the nature of an action of indebitatus assumpsit for a claim against the estate of J. E. Place, deceased, and not, as held by his Honor, “a claim against the fund representing the proceeds of the sale of the house and lot held by entireties.” It will he noted that the issue submitted by Judge Daniels was not whether the plaintiff was the owner of and entitled to a claim against any particular fund or proceeds of any particular sale, but was one of simple indebtedness, being in the following language: “In what sum, if any, is the estate of J. E. Place indebted to Tempie Gr. Place?” The answer of $2,750 to this issue would seem to support judgment for a debt, rather than for a claim against a fund representing the proceeds of a sale. Likewise the submission of the second issue as to the sufficiency of the personal property to satisfy the obligations of the estate indicates that the court was acting upon the theory that the action was one for debt and creditor’s claim, as the question of such sufficiency would not have arisen if the purpose had been to impress a claim upon a particular fund.

“If the cestui que trust is unable to trace the trust fund ... or if he elects not to do so, he may proceed against the trustee personally.” Perry on Trusts and Trustees, par. 843, pp. 1438-1439.

In an interesting discussion of the various counts in action of assumpsit, we find the following: “The count of indebitatus assumpsit, the most comprehensive one of all, in which it was alleged that the defendant was indebted to the plaintiff in a certain sum of money; as for real property sold or used and occupied, or for personal property sold; or for personal services rendered; or for money loaned or paid and expended to defendant’s use; or for money paid to and received by defendant to plaintiff's use; all of which was incurred in some way at his special instance and request; and that being so indebted, the defendant promised in consideration thereof to pay the plaintiff the said *679money. 1 Obit. PL, 341; Saund. PL & Ev., 139. Of tbe indebitatus counts, those relating to transactions based on tbe payment or receipt of money were called tbe money counts; as money lent to defendant; money paid and expended for bis use; and money had and received'by defendant to plaintiff’s use.” 5 C. J., 1381, footnote 10(a).

Tbe court below beld “That tbe said Tempie G. Place is estopped by tbe verdict and judgment in tbe said former action in wbicb it is declared tbat tbe personal assets of tbe estate are sufficient to pay its obligations and tbe costs of administration. . . In thus bolding we tbink bis Honor erred. In tbe judgment rendered in 1931 a definite indebtedness is declared and sucb judgment is final as to tbe amount. Tbe further adjudication therein, based upon tbe second issue submitted, tbat tbe personal property was sufficient to satisfy tbe obligations of tbe estate was interlocutory. Williams v. McFadyen, 145 N. C., 156. This latter adjudication was of necessity interlocutory, since tbe sufficiency of personal property to pay debts does not become determinative of tbe question as to whether land may be sold to make assets until tbe time for paying tbe obligations of tbe estate arrives.

“Where tbe personal property, although originally sufficient for tbe payment of debts, has become insufficient after tbe death of tbe testator, by reason of depreciation or losses for wbicb neither tbe personal representatives nor creditors are responsible, tbe real estate may be sold.” 24 O. J., 553.

We conclude tbat tbe petitioner is entitled to have tbe land of tbe estate of J. E. Place, deceased, sold to make assets to pay tbe balance due on her judgment, namely, $1,937.50. This action is remanded to tbe Superior Court of Durham County, tbat judgment may be entered in accordance with this opinion.

Eeversed.