Opinion
(December Term, 1833.)
1. No decree can be made against an executor unless assets are admitted by him or found upon a reference; and where he is made a defendant by sci. fa. after establishing the right of the plaintiff, the proper step is to direct an inquiry as to assets.
2. Interest is not compounded against a guardian for the time when the funds of the ward remain in his hands after the relation has ceased.
THIS was a bill originally filed against the testator of the defendant for an account of the assets of John C. Russell, who had appointed him executor of his will and guardian of the plaintiffs, his children. Pending the suit, Washington died, and the present defendant was made a party by scire facias.
(479) Devereux for petition.
Badger and W. H. Haywood, contra.
At a former term of the court there had been a reference directed, and the master had reported. Both parties excepted to the report for matters purely of fact, and a decree was passed.
At this term the defendant filed a petition to rehear that decree, and assigned two errors as existing in it:
1. That the master had charged him with compound interest from the death of his testator up to the time of entering the decree.
2. That by the decree execution was awarded of the goods and chattels of his testator in his hands, when he never had been charged with the receipt of anything, and never had an opportunity of answering as to the receipt and disbursement of the assets by him, and when no account of his administration had been taken.
The petitioner stated that he never had notice of the objectionable parts of the decree until after the close of the term in which it was made, as the final decree, upon the order overruling some exceptions and sustaining others, was drawn up upon a report of the master, upon directions to him to amend his first report according to the order upon the exception, and that this last report, as well as the final decree, was drawn up after his counsel had left the court to attend the circuit.
The principal of computation acted on by the clerk is contrary to the rule laid down in Ryan v. Blount, 16 N.C. 382, and Wood v. Brownrigg, 14 N.C. 430, and the decree must be opened in this respect and the account referred again to the master to compute simple instead of compound interest from the death of Washington, the guardian.
The last point is of more consequence as a general question. The bill was filed against Washington in his lifetime, and upon his death was revived against his executor by scire facias, and not by bill. The sci. fa. does not suggest assets in the hands of the executor, nor call for an answer, nor could it. Upon the hearing, a decree was made that Washington was indebted to the plaintiffs in a certain sum, and that they might have execution therefor against the assets in the hands of the executor. Such decrees have crept into use of late unadvisedly, owing to the manner of reviving by scire facias, which does not admit of an answer by the executor acknowledging assets, or stating an account. But they are against principle, and will not in future be passed. The primary jurisdiction of the Court is in personam, and although our statutes allow executions in equity, the nature of the decree is not altered, but only that process is substituted, at the election of the party, for that of contempt. The decree is against the defendant personally, regarding him as a trustee by reason of the fund in his hands applicable to the plaintiff's satisfaction. And no decree ought ever to be given for the raising the money unless the assets be admitted by the defendant or found upon a reference. Of course, this makes a reference indispensable in every case of a revival by scire facias, which should make plaintiffs more particular about the mode of reviving, for it increases the expense certainly, and they may lose the important advantage of fixing the defendant with assets by confession in an (480) early stage of the cause, and before they have been applied to other creditors. Indeed, the Court has felt a difficulty in saying that there could be any account of the assets ordered upon such a revivor, as this mode seems only to be proper when the executor is a formal party, and no relief prayed against him. But it is understood that the practice has been otherwise, and therefore a reference is allowed as incidental to the relief. Certainly an absolute decree cannot pass until assets be found; and we should not know how to treat such a decree upon an application for execution against the assets. If in analogy to the judgment at law it would be conclusive and subject the executor to payment unless he produced property. But that could not be sustained, for the rule of pleading is different. At law, a party is held to admit all he does not put in issue. In equity, it is just the contrary; and if the answer neither admit nor deny a fact charged by the plaintiff, it may be excepted to as insufficient. The object is to get the discovery. Therefore, the decree would conclude nothing but the sum declared to be due. No process ought to issue on it.
The decree must, therefore, be reformed in this respect, and a reference made to a master to take an account of the assets of the testator Washington which came to the hands of his executor, the defendant, and the disposition thereof made, and his disbursements; and if any part thereof remain in specific articles, of what the same consists, and the value thereof, and the profits made on the estate by the defendant, or any person under his authority, or that might have been made, making all just allowances, and report the same with any special matters by any of the parties required.
PER CURIAM. Order accordingly.
Cited: Sandridge v. Spurgeon, 37 N.C. 276; Edwards v. Love, 94 N.C. 369.
(481)