{ "id": 2092670, "name": "E. NYE HUTCHINSON et al. vs B. B. ROBERTS et al.", "name_abbreviation": "Hutchinson v. Roberts", "decision_date": "1872-06", "docket_number": "", "first_page": "223", "last_page": "227", "citations": [ { "type": "official", "cite": "67 N.C. 223" } ], "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": "64 N. C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682122 ], "opinion_index": -1, "case_paths": [ "/nc/64/0176-01" ] }, { "cite": "66 N. C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277628 ], "opinion_index": 0, "case_paths": [ "/nc/66/0450-01" ] }, { "cite": "64 N. C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682122 ], "opinion_index": 0, "case_paths": [ "/nc/64/0176-01" ] } ], "analysis": { "cardinality": 475, "char_count": 8913, "ocr_confidence": 0.423, "pagerank": { "raw": 4.220192602991313e-08, "percentile": 0.2683629431677291 }, "sha256": "be24a5a3a6edcef5efa661a3f7aa3700717641268be8cf08f42af04a1d0b5e2b", "simhash": "1:e4b9a546aeee5709", "word_count": 1521 }, "last_updated": "2023-07-14T16:32:25.131400+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "E. NYE HUTCHINSON et al. vs B. B. ROBERTS et al." ], "opinions": [ { "text": "Eisarson,..C. J..\nIt i\u00bb manifest by a perusal of tbe complaint,, that the primary and aM-im-po-rtent thing which- must be\u2018don\u00a9 in the first instance, before the other matter in respect to th\u00a9 trust for the femes plaintiffs can be dealt with, is to - have an account and settlement of the estate-of the testator;. for this purpose-all of the proper parties are joined,, and the only di'ff ficulty is,, that the: proceeding was commenced before the Judge of the Superior Court .in- term time, an-d not before the Judge of Probate ^ so the proceeding is e&ram non Judies. This is settled. Hunt v. Sneed, 64 N. C. 176. Sprinkle v. Hutchinson, 66 N. C. 450. To meet this difficulty the plaintiffs demand judgment, \u201c'that as preliminary and ancillary to the relief sought..in lehalf of the femes plaintiffs\u25a0, au account may be taken of all the real an-d personal estate of the testator, which has, or ought to have, com\u00a9 into the bands of-the defendants, as Executors, &cE\nCalling this demand for jwdgmeni, tbait- the defendants, a& Executors, account for all of the estate of the testator, \u201cpreliminary and ancillary to- the relief sought in behalf of the femes plaintiffs,\u201d does not make it ancillary and a mere inciden*. A matter arising- collaterally in the progress of a case-properly constituted for an account and settlement of a trust fund, in behalf outlie three femes plaintiffs, when it is perfectly \u00abvident that the first thing to be done is to have a settlement o\u00ed the whole estate. See Sprinkle v. Hutchison, 66, N. C. 450. The relief sought in behalf of the femes plaintiffs cannot be had, until there is \u00e1 trust fund ascertained and set apart for them. There has been no settlement of the estate by the two Executors, and no assent by them to the several legacies and devises.\nTreating this as a civil action, in the nature of an original bill in equity, for an account and settlement of a trust fund in behalf of the three femes plaintiffs, there is a misjoinder in respect to the other three plaintiffs, who are not embraced by the trust, and there is also a misjoinder in respect to the defendant Davis, who has no concern with the management of the trust fund. In short, the subject matter and the parties make a case for the Judge of Probate.\nThe primary subject matter and the parties do not make a ' case to be commenced in the Superior Court. A change of jurisdiction cannot be effected by an averment, that the judgment demanded in behalf of all of the plaintiffs against both of the defendants, is \u201cpreliminary and ancillary\u201d to the judgment sought in behalf of three of the plaintiffs against one of the defendants. See Froelich v. Express Company, at this Term.\nNo error.\nPer Curiam. Judgment affirmed.", "type": "majority", "author": "Eisarson,..C. J.." } ], "attorneys": [ "Bynum and Bailey, for plaintiff's.", "J. H. Wilson and J. M. McCorlde., for defendant\u00ae," ], "corrections": "", "head_matter": "E. NYE HUTCHINSON et al. vs B. B. ROBERTS et al.\nProceedings to effect a settlement of an estate against an executor must be commenced before the Probate Court.\nWhere the primary subject matter and the parties do not make a case to be commenced in the Superior Court, a change of jurisdiction cannot be effected by an averment, that the judgment demanded in behalf of all the plaintiffs against both defendants, is \u201c preliminary and auxiliary \u201d to the judgment sought in behalf of three of the plaintiffs against one of the defendants.\nIn a civil action, in the nature of a bill in equity, for an account and settlement ot a trust estate, in behalf of three feme plaintiffs, it is a misjoinder to make others plaintiffs, who are not embraced by the tiust; and likewise a misjoinder, to make one a defendant who has no concern with tiie management of the trust fund.\n[Hunt v. Sneed, 64 N. C. 176. SprinMe v. Hutchinson, GG N. C. 450, cited aud approved.]\nCivil Action, tried before Logan, J., at Spring Terra, 1872, ot Mecklenburg Court.\nThe plaintiff's allege, that Joel H. Jenkins died in the County of Rowan in the year 1859, having made and published bis last will and testament, which was admitted to probate in 1860, and that the defendants, Roberts and Davis, were appointed and qualified as executors ;\nThat at bis death tbe testator left several children, Elizabeth, who intermarried with plaintiff Hutchinson, Ella, who intermarried with plaintiff Burwell, Sarah, who intermarried with J. II. McAden, Charlotte, John II., and Thomas;\nThat plaintiff, Brown, was appointed guardian of John and Thomas. That Thomas died unmarried and A. Burwell is his administrator, and that Charlotte has no guardian and sues by her next trien d, A. Burwell;\nThat, by said will, the testator devised and bequeathed to his wife certain real and personal estate absolutely, certain other real estate to her for life, remainder to his children to be equally divided between them, with legacies of six thousand dollars to each of the children, except Elizabeth and Ella, if Mrs. Cowan\u2019s will was established ;\nThat testator\u2019s wife is dead ;\nThat he died seized and possessed o\u00ed a large real and personal estate, estimated at $250,000, and consisting o\u00ed town lots, lands in Rowan and Iredell counties, and valuable land in Arkansas, a number o\u00ed solvent notes, exceeding in amount $100,000, slaves in this State and Arkansas, railroad bonds, stock in the North Carolina Railroad Company, Florida bonds, &c., all of which passed into the hands of the defendants Roberts and Davis, executors aforesaid ;\nThat according to the best information and belief of plaintiffs, the estate was worth $150,000, after payment of debts;\nThat defendants have made no return of the estate, except an inventory at May Term, I860, nor of the condition of said estate, until very recently, and then only under the compulsion of legal proceedings;\nThat by the terms of the will, the estate bequeathed to the fame plaintiffs is directed to be vested in the defendant Roberts as trustee, upon trust, to hold the same for the solo and separate use of the feme plaintiffs, but that said Roberts, up to the commencement of this action, has not, to the knowledge of plaintiffs, accepted the said trust, but, on the contrary, has failed and neglected to procure a settlement between himself and Davis, as executor aforesaid, or to cause the property to be conveyed to him as trustee under the will; that plaintiffs have reason to believe, and charge, that a conspiracy has been entered into between the defendants Roberts and Davis to defraud the plaintiffs;\nThat plaintiffs have frequently called upon the defendants, and especially the defendant Roberts, as the trustee named in the said will, to come to a fair and just settlement with them, touching their rights and interests under the said will, and to convert and pay over to them the said estate in their hands, but the defendants have refused to comply with said request unless plaintiffs would accept a large proportion of the amount due to them, in Confederate bonds and notes, and other worthless securities.\n. Complaint charges, that the defendants have mismanaged the Arkansas lands, in not collecting rents, &c., and that they received payment since July 1863, in Confederate money, ot well secured notes; that neither of the defendants are worth more than $25,000, and are not able to pay such judgment as' plaintiffs are entitled to and must recover in this action.\nWherefore they demand judgment: That as preliminary and ancillary to the relief sought in behalf of the feme plaintiffs, an account may be taken, by and under the direction of this Court, of all the estate, real and personal, \"which has, or ought to have come into the hands or under the control of the defendants as executors, and of their disposition thereof, and also an account of what estate, if any, has' come, or ought to have come, into the hands of the defendant, Roberts,\u2019-' as trustee, &c. \"\nThat the trusteeship be declared vacant; and''t'Mt\u2019sbme suitable person be appointed trustee in the \u2019 place of \"Roberts, to receive such estate as may be due the fem\u00e9 plaintiff's under the will, and the defendant be required to make an'assig'hme'rit of the stock to the said trustee, with apt words to hfe\u00e1te a separate use for the benefit of such feme plaintiffs. \" : 'V f\nThere is also a prayer that defendants jpay, to the trustee appointed, such part of the estate as\u2019m\u00e1y be' \u00e1scert\u00e1iri\u00e9d to be due, under pain of contempt, and to th\u00e9'other'plaintiffs,Rf\u00f3w>; as guardian, and Burwell as administrator, 'and to the guardian who may be appointed for Charlotte 'ienkihsfsiieh part of the estate as may be due them. There is also a prayer for a receiver. \u2022 ' \u25a0 ...\nTo this complaint defendants demurred, and assigned as grounds of demurrer: \u2018\n1st. That tbi\u00a9 Court has no jurisdiction o\u00ed tbe persons of defendants.\n2d. That this Court has no jurisdiction of the subjects of this suit.\nUpon argument, his Honor sustained tbe efemi-rrer and gave? judgment' accordingly. Plaintiffs- appealed to the Supremo Court.\nBynum and Bailey, for plaintiff's.\nJ. H. Wilson and J. M. McCorlde., for defendant\u00ae," }, "file_name": "0223-01", "first_page_order": 233, "last_page_order": 237 }