{ "id": 11277099, "name": "McIntire's Executors v. Carson, Executor", "name_abbreviation": "McIntire's Executors v. Carson", "decision_date": "1823-12", "docket_number": "", "first_page": "544", "last_page": "549", "citations": [ { "type": "nominative", "cite": "2 Hawks 544" }, { "type": "official", "cite": "9 N.C. 544" } ], "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": [], "analysis": { "cardinality": 698, "char_count": 11148, "ocr_confidence": 0.273, "pagerank": { "raw": 2.651137839932372e-07, "percentile": 0.8240675421617245 }, "sha256": "e598e06d27aeed64246ed8636704ff410f2f046b0eef68463572319cdb164517", "simhash": "1:01ce6c2646e8cc21", "word_count": 2014 }, "last_updated": "2023-07-14T21:20:49.892283+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Taylor, Chief Justice, dissented." ], "parties": [ "McIntire\u2019s Executors v. Carson, Executor." ], "opinions": [ { "text": "Hall, Judge.\nThe. question, in this case, is, whether an executor, de'son tort, can plead the statute of limitation, created by the act of 1715, eh. to. if this were a plea that tended to the personal benefit of the executor de son tort, he ought not to be permitted to avail himself of it, but it is a plea, pleaded for the benefit of the estate; the rights of the Defendant are not, in any respect, thereby afferled, and creditors have a right to bring actions against him ; and I see no reason way they should succeed in making out their claims against him, with more facility than they could do against the rightful executor ; certainly other creditors, and the next of kin-would be thereby injured. If a rightful executor can plead such a {.-lea, for the purpose of protecting the estate, I think the Defendant may do it in the present case. The Plaintiff will not be in a worse situation than if ho ban sued a lawful representative of (lie estate. No hardship or inconvenience is pointed out in this case, that might, not equally apply to the other. \u2014 (1 Wentw. office of Ex\u2019rs. 177 \u2014 3 Term 588 \u2014 10 Ves. 93 \u2014 Andrews Rep. 328 \u2014 2 Str. 1106.)\nHenderson, Judge.\nThe act of 1715, commonly called the seven years bar, was intended for the benefit a\u00ab;l protection of the estates of de-ad mc'5\u00a1; not for the protection of those who have the management of them. or way represent the dead men ; and the Plain'd if Istn big- chosen to consider the Fk-fiesdmit as ami thrown oil him the defence of the- assets, sha'I not oust the estate of any defence to which it wo\u00fcd be, entitle*\u2019 in the hands of a rig-bifid executor, for ii would he very suarge that a demand should be, enforced against tin; estafe, v. hen ike estate, is defended by one person, and mot when defended by another. I think the distinction is, that what will protect the assets \u00a1nay he used in. citiier j those rigid s which the law allows to the executor, on account of his odice, can be claimed by \u00a1be rightful executor only, as the right of retaining compensation for his trouble and others $ i\" there lie any of the, tike hind, possibly [lie, right of offering a set-off, may fee one exception from Ihe above rule, this can be denied im the wrongful executor, only on technical reasons, to wit; that as he cannot sustain suits for want of loiters teda-menta ry, lie cannot set off against a demand nsm?* the assets $ and, as the declared object of lhe statutes &%w\u00ab lug a, set off, is to prevent u multiplicity of suits, it can only be used where it can have, that effect. The soundness of this reasoning it wiil be sufficient to exam; \u2022<;, when the ease occurs. It may be taken cither way, whii* out affecting the present question. Etilo for a new trial discharged.\nTaylor, Chief Justice, dissented.", "type": "majority", "author": "Hall, Judge. Henderson, Judge." } ], "attorneys": [ "Gaston, for appellant.", "Seawell and Wilson, contra,", "Gaston in reply." ], "corrections": "", "head_matter": "McIntire\u2019s Executors v. Carson, Executor.\nFrom Wilkes.\nThe act of 1715, Ch. 10, is intended for the protection of dead men\u2019s estates, and not for the personal benefit of the executor ; an executor de son tort may, therefore, plead it, as well as a rightful executor. The true distinction is, that whai will protect the assets, may be used by any executor ; but those rights which the law allows to the executor on account of his office, can be claimed by a rightful executor only.\nThis was an action brought against the Defendant, as executor of one James McDowell, to which Defendant pleaded ne unque\" executor, fully administered, act of 1789, and the act of 1713 re-enacted in 1799. To the pica of ne imanes executor, there was a replication that the Defendant, since the death of James McDowell, had acted as executor of the said James, by administering divers goods and chattels which belonged to the estate of said James.\nThis suit was commenced July 30th, 1818, and at September term, 1829, the case, by rule of Court, was referred to arbitrators, no award having been made, the rule was set aside, and the cause set for trial, it did not appear,on the trial, that the. Plaintiffs knew at what time Defendant took the property into his possession. The Jury found that Defendant was executor dc son tort of James McDowell, that he had assets sufficient to satisfy Plaintiffs demand^ and further, they found that the act of 1715, was a bar to Plaintiffs secovery.\nPlaintiffs moved for a new trial, on three grounds, 1st, that an executor de son tort is not within the 'protcction of the act of 1715? 2dly, that it did not appear from the evidence, that the Plaintiff knew of the Defendant\u2019s having possession of the negroes, for more than seven years next before he brought suit? 3dly, that the \u00edvftv\u00ednce to r. )!\u25a0:. the Flaiuliit's claim out of iho !>'-.\u00eds.\u00a1*;i\u00fcn!! of the act of if! 3.\nl.curt held, that ius executor \u00edu? sun tort was within the prdedion'of \u00bfLe act o\u00ed* If 1.1, and that the time began to ?\u00ab\u00ab i\u00ab favour o\u00ed the Defendant, from the time ho \u00ab\u00abok pi'^\u2019occioi! of the \u00a1.rojX'vly, and openly and pub\u00bb lickJy er-'i l-\u00ed*\u00ab:s viewed, ami from principle\". of convenience.\nThe eci is without preamble 5 Sni & am its title, it ftp-pears thai. iio object v.its to prescribe a mode of proving wills, of* gra.nU:!;; \u00abftsr\u00ed\u00faiidreiiosvu and to prevent frauds in dreecrwi pok'soif\u2019j estates, ard in Us 4th section, enacts, that no person shall nr \u00ab\u2018dome to meddle with the estate of ose seve-aerd, unless be be appointed pursuant to ibis ad. The act ito-\u2019s nor say that sails shall be. b\\)it:-;k' iHisi escrutare wUh\u2019u seven yearn, but declares tl- it ,.3 \u2022 I\u2018tint, s\u2019mII be minis after ike expiration of that time. Tk\u00ab kypdduro an id save Iic.cS in contemplation, in this pari of the Lev, rightful executors only 4 for why speak of \u00ab\u2022\u00ab/.\u25a0?\u00ab y c vJiim, o\u00aba!nst a:i executor de son tort, when the very pursue ii\u00edcdf, iieccsuurily implies the cxist-oice of nomo y-iucu iMwfa\u00fcy authorised to demand, and seine person :.-.wf\u00fc\u00ed!y &r. thurified to scit'o, some \u00a1jer-g\u00f3n oa whom \u00edo icriko a ohJoi. The legislature obviously iiuenoed to pro vide Ui.it wxae Individual should always be lcg:?\u2019!j coiidiusC'd t\u00ab ;:cb1e dead men\u2019s es-te oes, and bad in ro\u00ediiei>\u00edp!a\u00ediw;\u00ab, v> roegri!! executors only to forbb! ikeir existence. ]\u00a1.si \u00edbe rci.e before the Court, there was fop seven years, \u00a110 inftft ktaa! a&auist wlioin to mate claim, we have therefore been guilty o? no laches $ it is no answer to tell us there was an executor de son tort whom we might have sued. \u2014 (Bac. Ab. \u201cLimitation of actions,\u201d E. 5.) Tins Court has already decided, that when for seven years there was no person authorised to mate claim on behalf of a deceased creditor, the lawful representative when appointed, should no! thereby be barred ; the reason will justify the conclusion which 1 have drawn as applied to the deceased debtor, against whose- estate a claim exists.\nHow was an executor de son tort viewed at common law: Jle. is one who is held liable to all the obligations, but entitled to neme of the privileges of a rightful executor, for he is a mere officious intermeddier. lie is not regarded as regularly an executor (Toller 11, 17,) he has no interest in the estate, and is. not charged\u2019with its protection, (Ibid. 190.) In statutes, he is not included under the word ,s executors.\u201d \u2014 (\u00bfAndrews 250.) He cannot plead a set off (Ibid.) neither can he retain.\u2014 (Ibid. 328.) But it may he asked, how is a Court to know that he is executor de son tort, where he, does not, as In this case, plead ne unqnes executor ? I answer, that although he is sued as executor, if he claims any thing as executor, pleads for instance, a retainer, it is no departure for Plaintiff to reply, that ho is executor de son tort. Vaughan v. Brown \u2014 (Andrews 328.) \u2019 The act of 1715, was. intended to protect the estate in the hands of the legal holder, it never was meant, to operate for the personal protection of a wrong-doer; the estate can never be. injured by a judgment against an executor de son tort; if he admits himself executor, and judgment be signed against him, a sd. fa. against the heirs would not lie, for be nacer was in contemplation of law, the representative of the estate ; and if be denies, as here, judgment will be de bonis propriis. \u2014 (Toller 369.)\nBut it may be asked, will not distributees be obliged to allow executor de son tort, 'a recovery made against him, though after seven years ? To this. 1 answer, that the distributees are themselves guilty of laches, if not of , . fraud, in not bringing him earlier to account, or having; a lawful administrator appointed j and further, the recovery should not protect au executor de son tori, unless shewn to be for a debt that ought to be paid by the estate of the deceased, in which case, equity would undoubtedly relieve him. \u2014 (3 Bac. Jib. Jim. Ed. 25.) On the ground of convenience, if a construction different from tiiat which I have given the act prevails, the statute is converted into a machine to promote frauds, every debtor will he endeavoring to get possession of the property, keep it out of view for seven years, and then come forward with a discharge in full, in the form of an act of assembly.\nSeawell and Wilson, contra,\nsaid that the act of 17! 5, was not intended for the benefit of the executor, either rightful or wrongful, but for the protection of the estate. The principle, that a wrongful executor shall not have the privileges of a lawful representative, applies only to the personal convenience, or privilege, of the executor. The Plaintiff, by his suit, has chosen to consider him as the legal representative, and cannot, now, deny him the privileges attached to the character with which' he, himself, has invested him. If an executor de son tort, he sued by the rightful representative, he shall be allowed all the assets which he has administered.. The case of Webster v. Webster \u2014 (10 Ves. 93,) was referred to.\nGaston in reply.\nAn executor, of his own wrong, may, in general, plead a matter to protect the estate, but the enquiry here is, does the act of 1715, which alone authorises this plea, permit it, except in case of a legally constituted representative ? AU that was decided in Webster v. Webster, is, that where the rightful, executor meddles; VHh the property, before probate, jhe may, if sued, plead (he. statute, because, by interfering, be has l>ia!'e election, and is right ful executor to all intents awl pu' jjoscs. It decides that the statute runs only from til\u2019* time of the acceptance of the executorship, no i\u00bbat-