{ "id": 8565834, "name": "STATE OF NORTH CAROLINA v. WILLIAM S. JESSUP", "name_abbreviation": "State v. Jessup", "decision_date": "1971-07-10", "docket_number": "No. 114", "first_page": "108", "last_page": "114", "citations": [ { "type": "official", "cite": "279 N.C. 108" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "10 N.C. App. 503", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554546 ], "opinion_index": -1, "case_paths": [ "/nc-app/10/0503-01" ] }, { "cite": "286 S.W. 2d 157", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10168405 ], "opinion_index": 0, "case_paths": [ "/sw2d/286/0157-01" ] }, { "cite": "26 A.L.R. 1362", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "86 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "14 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689386 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/14/0221-01" ] }, { "cite": "40 S.E. 2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 103", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621547 ], "opinion_index": 0, "case_paths": [ "/nc/227/0103-01" ] }, { "cite": "144 S.E. 2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575386 ], "opinion_index": 0, "case_paths": [ "/nc/265/0380-01" ] }, { "cite": "111 S.E. 2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626903 ], "opinion_index": 0, "case_paths": [ "/nc/251/0658-01" ] }, { "cite": "114 S.E. 2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625871 ], "opinion_index": 0, "case_paths": [ "/nc/252/0783-01" ] }, { "cite": "34 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684381 ], "opinion_index": 0, "case_paths": [ "/nc/34/0061-01" ] }, { "cite": "129 S.E. 2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562340 ], "opinion_index": 0, "case_paths": [ "/nc/258/0676-01" ] }, { "cite": "123 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571638 ], "opinion_index": 0, "case_paths": [ "/nc/256/0166-01" ] } ], "analysis": { "cardinality": 771, "char_count": 15286, "ocr_confidence": 0.575, "pagerank": { "raw": 1.5126054799610404e-07, "percentile": 0.6677514789472282 }, "sha256": "e3431970d4ba618ee46177cc4c8528eb69cc0729e53ee8773a9f820feb80fe82", "simhash": "1:8e3d5626ee3ee6d1", "word_count": 2628 }, "last_updated": "2023-07-14T15:36:58.436463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM S. JESSUP" ], "opinions": [ { "text": "HIGGINS, Justice.\nThe basic question of law at issue in this case is the validity of the bill of indictment. Indictment is the foundation upon which a felony charge must rest. If it be found defective, the prosecution fails.\nIn this case, the defendant, a son of W. M. Jessup who died on October 12, 1967, is charged with having stolen $20,100 \u201cof the goods, chattels and moneys of the estate of W. M. Jessup, deceased.\u201d The indictment alleges the offense occurred on October 13, 1967, the day following Mr. Jessup\u2019s death. The deceased did not leave a will. Upon his death eo insianti, the title to his real estate vested in his heirs. Paschal v. Autry, 256 N.C. 166, 123 S.E. 2d 569. The title to the personal estate vested in his personal representative. Spivey v. Godfrey, 258 N.C. 676, 129 S.E. 2d 253.\nThe estate of a deceased person is not an agency for holding title to property. It is the property itself, to be administered by a personal representative commissioned by the court. \u201cEstate\u201d is described as \u201cThe aggregate of property ... of all kinds that a person leaves for disposal at his death.\u201d Webster\u2019s Third New International Dictionary.\n\u201cIn its broadest and most extensive sense, the term \u2018estate\u2019 embraces every species of property possessed by an individual and everything of which riches or fortune may consist, and includes both real and personal property, . . .\n\u201c. . . . As used in a statute, it may mean property of all kinds held ... by any legal representative appointed by the probate court . . . whose duty it is to keep such property safely and finally to distribute it under the direction of the probate court.\u201d 28 Am. Jur. 2d Estates \u00a7 1, p. 70.\n\u201cThe word \u2018estate\u2019 has a broader signification than the word \u2018property.\u2019 The former includes choses in action. The latter does not.\u201d Opinion by Pearson, J., in Pippin v. Ellison, 34 N.C. 61.\n\u201cA warrant (or indictment) for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning (or holding) property, is fatally defective.\u201d State v. Biller, 252 N.C. 783, 114 S.E. 2d 659. See also State v. Thornton, 251 N.C. 658, 111 S.E. 2d 901.\nIn the case of State v. McKoy, 265 N.C. 380, 144 S.E. 2d 46, Justice Parker, for this Court said:\n\u201cThe second (larceny) count in the bill of indictment is fatally defective. While it alleges the larceny of \u2018$60.00 in money,\u2019 it fails to designate in any manner the owner thereof or the person in possession thereof at the time of the alleged unlawful taking. . . .\n\u201cSince the second (larceny) count is fatally defective and insufficient to confer jurisdiction, this Court ex mero motu arrests the judgment . . . .\u201d\nIn State v. Law, 227 N.C. 103, 40 S.E. 2d 699, the city officers of Winston-Salem seized an automobile loaded with contraband. They parked it in the city lot. During the night the automobile was stolen. The indictment charged the defendants with larceny from the City of Winston-Salem. The Court said: \u201cUsually a fatal variance results, in larceny cases, where title to the property is laid in one person and the proof shows it to be in another .... \u2018In all cases the charge must be proved as laid.\u2019 \u201d The court held the larceny charge was fatally defective.\nIn State v. Thornton, supra, this Court said: \u201cIf the property alleged to have been stolen is that of an individual, the name of the individual, if known, should be stated. If it is the property of a partnership, or other quasi artificial person, the names . . . should be given .... The bill of indictment on its face is fatally defective.\u201d\nAfter his father\u2019s death, the defendant and each heir, as a tenant in common, had a legal right to enter the packhouse. If any heir or distributee of the estate discovered money or other valuables exposed to loss, it would be proper to take possession for the purpose of preserving it for the administrator. The law recognizes the fact that a period of time must elapse between death and the qualification of the personal representative. During that interval one who takes possession of property belonging to and a part of the estate is a constructive trustee for the benefit of the administrator and must account to him. If he does not account to the administrator, he becomes executor de son tort. The administrator\u2019s duty is set forth in G.S. 28-4 (which comes to us from the Mother Country) :\n\u201c\u00a7 28-4. Executor de son tort. \u2014 Every person who receives goods or debts of any person dying intestate, or any release of a debt due the intestate, upon a fraudulent intent, or without such valuable consideration as amounts to the value or thereabout, is chargeable as executor of his own wrong, so far as such debts 'and goods, coming to his hands, or whereof he is released, will satisfy.\u201d\nThe law (G.S. 28-69) provides a quick and immediate remedy by which a personal representative may examine any party if he has reasonable grounds to believe a person, firm or corporation has possession of any property belonging to the estate. The clerk may force delivery or attach for contempt for failure to deliver. This remedy is in addition to other remedies and is for the purpose of discovery and recovery without waiting for the slower process of a suit in the superior court. One who takes and refuses to account to the personal representative, becomes a trustee for the benefit of the estate and subject to the penalties provided for breach of trust.\nIn the case of Norfleet v. Riddick, 14 N.C. 221, Chief Justice Henderson, for the Court, said that after the death of Thomas Riddick and before Joseph Riddick qualified as executor, Joseph Riddick took possession of certain personal property (claiming it as his own). The Court in discussing his liability said that he was a \u201cprivileged intermeddler . . . liable to creditors as executor de son tort.\u201d The case was cited by Ruffin, J., in Burton v. Farinholt, 86 N.C. 261 @ 267, and is quoted in 26 A.L.R. 1362. One who takes and holds a decedent\u2019s property is deemed an in-termeddler. Such person holds as executor de son tort. Norfleet v. Riddick, supra.\nThe discussion of any question except the validity of the indictment, is by way of answer to the holding of the Court of Appeals that a hiatus exists between the death of the intestate and the qualification of the administrator which permitted the State to charge larceny from the estate. The Court of Appeals for its holding cites as authority the case of Edwards v. State (Texas), 286 S.W. 2d 157. It is true that in Edwards \u201cThe indictment alleged the ownership of the money to be in the estate of Mary E. Rose, deceased.\u201d If the indictment contained nothing more, the case would be in point. But, \u201cThe indictment alleged the possession to be in W. C. Shandley as one of the heirs of the estate of Mary E. Rose, deceased.\u201d The allegation of possession in Shandley would enable the defendant to establish a plea of former jeopardy if he were again charged for the same offense. Without such latter allegation a defendant could be subject to repeated charges of theft from an \u201cestate.\u201d The allegation of theft from Shandley served to emphasize the defect in the indictment against Jessup.\nFor the reasons heretofore assigned, we conclude the State\u2019s argument does not satisfy the requirement of the law that the identity of the owner or the person in possession of the stolen property should be named in the indictment with certainty to the end that another prosecution cannot be maintained for the same offense.\nWe are forced to conclude the indictment in this case fails to charge the ownership, possession, or right to possession of the $20,100 in any person, corporation or organization or agency capable of possessing or holding the title to, or to possession of, personal property. The indictment is fatally defective.\nThis Court held in State v. Law, supra: \u201cThe question of variance may be raised by demurrer to the evidence or by motion to nonsuit. . . . Tt challenges the right of the State to a verdict upon its own showing, and asks that the court, without submitting the case to the jury, decide, as matter of law, that the State has failed in its proof.\u2019 \u201d\nThe decision of the Court of Appeals, finding no error in the trial, is reversed. The Court of Appeals will remand the case to the Superior Court of Stokes County with instructions to arrest the judgment, to set the verdict aside and to quash the indictment.\nReversed.", "type": "majority", "author": "HIGGINS, Justice." } ], "attorneys": [ "Robert L. Morgan, Attorney General, by William W. Melvin, Assistant Attorney General T. Buie Costen, Assistant Attorney General, for the State.", "Hatfield, Allman and Hall, by Roy G. Hall, Jr. James W. Armentrout for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM S. JESSUP\nNo. 114\n(Filed 10 July 1971)\n1. Executors and Administrators \u00a7 6\u2014 title to property of intestate\nUpon the death of decedent without a will, the title to his real estate vested eo instanti in his heirs and the title to his personal estate vested in his personal representative.\n2. Executors and Administrators \u00a7 6\u2014 estate of decedent\nThe estate of a deceased person is not an agency for holding title to property, but is the property itself, to be administered by a personal representative commissioned by the court.\n3. Executors and Administrators \u00a7 6; Trusts \u00a7 14\u2014 possession of property belonging to estate \u2014 constructive trust \u2014 executor de son tort\nOne who takes property belonging to an estate during the interval between decedent\u2019s death and the qualification of the personal representative is a constructive trustee for the benefit of the administrator and must account to him; if he does not account to the administrator, he becomes executor de son tort. G.S. 28-4.\n4. Executors and Administrators \u00a7 8\u2014 recovery of estate property\nG.S. 28-69 provides an immediate remedy by which a personal representative may examine any party if he has reasonable grounds to believe a person, firm or corporation has possession of any property belonging to the estate, and the clerk may force delivery or attach for contempt for failure to deliver.\n5. Executors and Administrators \u00a7 8; Trusts \u00a7 11\u2014 refusal to account to administrator \u2014 breach of trust\nOne who takes and refuses to account to the personal representative becomes a trustee for the benefit of the estate and subject to the penalties provided for breach of trust.\n6. Larceny \u00a7 4\u2014 allegation of ownership in estate \u2014 fatal defect\nIndictment alleging the larceny of money \u201cof the estate of W. M. Jessup, deceased,\u201d is fatally defective in failing to charge the ownership, possession or right to possession of the money in any person, corporation, organization or agency capable of possessing or holding title to personal property.\nOn certiorari to the North Carolina Court of Appeals to review its decision reported in 10 N.C. App. 503, finding no error in the defendant\u2019s trial before Armstrong, at the September 28, 1970 Criminal Session, Stokes Superior Court.\nThis criminal prosecution was based on the following bill of indictment:\n\u201cThe jurors for the State upon Their Oath present, that William S. Jessup, late of the County of Stokes, on the 13th day of October in the year of our Lord one thousand nine hundred and sixty-seven, with force and arms, at and in the County aforesaid, Twenty Thousand and One Hundred (20,100.00) Dollars in money, of the value of Twenty Thous- and and One Hundred ($20,100.00) Dollars, of the goods, chattels and moneys of the estate of W. M. Jessup, deceased, then and there .being found, feloniously did steal, take and carry away, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.\u201d\nAt the trial the defendant, William S. Jessup, entered a plea of not guilty. The evidence in its light most favorable to the State disclosed that W. M. Jessup was the owner and lived with his wife, Lily Jessup, on a tobacco farm in Stokes County. During the year 1964 he suffered a heart attack, spent a considerable time in the hospital and thereafter was able to do only a limited amount of farm work. He died suddenly at his home on the early morning of October 12, 1967. He was survived by his wife; a daughter, Mrs. Jamie Callum, who lived in Rockingham County; and two sons, Wilton Jessup who lived in Georgia, and the defendant, William S. Jessup. The defendant lived on a nearby farm and assisted his father in his tobacco farming, both before and after the latter\u2019s heart attack.\nThe deceased and Mrs. Jessup lived in a two story frame house on a country road near the Virginia line. About 100-150 yards from the house and near the highway was located a pack-house used for storing tobacco. Prior to his death Mr. Jessup kept his money (estimated to be in excess of $20,000) in a wooden box concealed in the packhouse which was kept locked. The evidence indicated that Mrs. Lily Jessup, the widow, had approximately $3,000 in the box.\nOn Tuesday before Mr. Jessup died on Thursday, Mrs. Jessup had seen the box in the packhouse. She did not examine the contents. Within a few hours after the death of her husband, the box and the money were missing. At the time, the defendant had a quantity of tobacco stored in the packhouse.\nThe family had a disagreement about the selection of an administrator. Finally, Mr. VanNoppen, an attorney, qualified. Nb one made claim or complaint to the administrator that any money was missing. The defendant paid his father\u2019s burial expenses, but did not request the administrator to reimburse him.\nApproximately eleven months after Mr. Jessup\u2019s death, Highway Patrolman Blalock arrested the defendant for driving drunk. At the time of the arrest the officer took the keys from the automobile. In the car were some beer cans and on the back seat was an empty cardboard pistol box. When the prosecution sought to have the officer identify the contents of the glove compartment, the court made inquiry whether the officer requested permission to make the search. The officer replied, \u201cNo, sir, he was intoxicated.\u201d\nThe officer unlocked the glove compartment with the keys he had taken from the defendant and found in the glove compartment 201 $100 bills, a total of $20,100. These bills were old and some were of large size. They were in packs wrapped with paper bands. On one of the bands was the name \u201cNorth Wilkes-boro Bank\u201d and on another \u201cPilot Mountain Bank.\u201d Both bore the date 1945.\nAfter the discovery of the money by Officer Blalock, the defendant\u2019s sister, Mrs. Galium swore out a warrant charging her brother with the theft of the exact amount of money that Officer Blalock had found. The warrant, likewise the bill of indictment, charged the theft from \u201cthe estate of W. M. Jessup, deceased.\u201d\nAt the preliminary hearing, according to Mrs. Lily Jessup, she asked the defendant if he got his father\u2019s money. \u201cHe said that he had it. And he got mad and said, I got it and you and Jamie and Wilton won\u2019t get a \u2018God damn\u2019 dollar.\u201d\nAt the close of the evidence the defendant made a motion to dismiss the case on account of the variance between the indictment and the proof. The court denied the motion and submitted the case to the jury which returned a verdict of guilty. From a judgment of imprisonment of not less than nine, nor more than ten years, the defendant appealed.\nRobert L. Morgan, Attorney General, by William W. Melvin, Assistant Attorney General T. Buie Costen, Assistant Attorney General, for the State.\nHatfield, Allman and Hall, by Roy G. Hall, Jr. James W. Armentrout for defendant appellant." }, "file_name": "0108-01", "first_page_order": 136, "last_page_order": 142 }