Opinion
(August Term, 1856.)
An agreement growing out of the division of the estate of a deceased person, without the qualification of an executor, and without administration on such estate, is void.
ACTION of ASSUMPSIT, tried before his Honor, Judge MANLY, at the Fall Term, 1855, of Buncombe Superior Court.
N.W. Woodfin, for plaintiffs.
J. W. Woodfin, Avery and Gaither, for defendant.
In 1842, William Woodard made his will, by which he gave all his property to his wife for her life, with power to dispose of the same, so as to be equally divided among their five children after her death, and appointed two persons as executors to the will. After executing his will, Woodard became paralytic and entirely bereft of understanding, from which he never recovered. While in this condition, about a year before his death, his family, except B. Robinson and his wife, (the latter of whom was his daughter,) assembled together, and with the aid and concurrence of one of the persons named as executor, made a division of the property. By this division, Robinson was required to pay to the plaintiffs four hundred dollars as an excess of his share over that of the plaintiffs. About one year after this arrangement, viz., in 1847, the testator died, and his will was admitted to probate; but the executors named therein, did not qualify, nor did any one administer on the estate with the will annexed. About a year after the death of Woodard, Robison made known his dissent from the arrangement, but afterwards sold his interest in the estate to the defendant, who undertook and promised to pay to the plaintiffs the four hundred dollars which had been assessed against Robison's share, which he failed to do, and for which failure this suit was brought. The defendant contended below,
1st. That there was no consideration to support the promise.
2nd. That it was void as being a parol promise to pay the debt of another person.
3rd. That the promise was to Job Ramsay, and not to him and wife; so he alone should have sued.
The Court intimated an opinion against the plaintiffs upon the first point especially, but by consent of the counsel, with a view to having a final disposition of the cause, a verdict was entered for the plaintiffs for $400 and interest, subject to be set aside, and a nonsuit entered, in case his Honor should be of opinion against the plaintiffs' right to recover.
The Judge afterwards entered a nonsuit, and the plaintiffs appealed.
The case of Sharp, Adm'r., v. Farmer, 4 Dev. and Bat. 122, is decisive of this. There, upon the death of one Jerusha Farmer, intestate, her next of kin, without any letters of administration being taken out, agreed with the defendant that he should collect the estate and sell it, and after paying the debts, divide the estate among those entitled to distribution. The defendant collected the assets, and after paying the debts there remained a surplus in his hands; and the action was brought in assumpsit to recover from him the distributive share of the plaintiff, he being one of the next of kin of the deceased. The Court say, "After a vast number of cases upon the subject, it seems to be now perfectly settled, that no action will be sustained in affirmance and enforcement of an executory contract to do an immoral act, or one against the policy of the law, the due course of justice, or the prohibition of a penal statute." The agreement in this case among the next of kin of Jerusha Farmer, is against the express prohibition of the Act of 1715, 1 Rev. Stat. ch. 46, sec. 8, under a penalty of one hundred dollars. That section declares that no person shall enter upon the administration of any deceased person's estate until there shall have been letters of administration, under the penalty of one hundred dollars. See Hairston v. Hairston, 2 Jones' Eq. 123.
The promise made by the defendant upon which the action is brought is void, and no action can be sustained upon it.
PER CURIAM. The judgment of nonsuit affirmed.