Howell v. . Hooks , 39 N.C. 188 ( 1845 )

The following is the case presented by the pleadings and proofs:

In 1817, Edward Sasser, who had married a daughter of Benjamin Howell, gave to the latter his bond for $415.77, payable two days after date. In November, 1828, Benjamin Howell made his will, and died in 1829. Clause 11 of the will is as follows: "I give and bequeath unto the daughters (189) of Edward Sasser, one note which I hold on said Sasser, to be equally divided between them, the amount probably $500." The will was duly proven, and the executor, therein named, Benjamin Howell, Jr., qualified as such, and took into his hands the property of his testator, including his bond. Benjamin Howell, Jr., died in the year...., and the defendant was, by the proper authority, appointed his administrator; and the bond in question came into his hands, together with property to a large amount, belonging to his intestate. The bill charges that it was the duty of the executor. Benjamin Howell, to have collected the bond, which is still due and unpaid, and to have distributed the proceeds among those entitled, who are the complainants in this case; that, in consequence of his negligence, the bond can not now be recovered, as from the length of time which has elapsed, the law will presume it has been paid; and prays that the defendant may be decreed to pay to them the amount of principal and interest due thereon.

The answer states that more than twelve years elapsed, from the time the bond became due and payable, to the death of Benjamin Howell, Sr.; and that letters testamentary did not issue to him, until more than sixteen years after its so falling due. It further states, that, soon after the issuing to him his letters testamentary, he did call on the obligee, Edward Sasser, and requested him to become guardian to his children, and receive the bond. This he declined, saying he never meant to pay it. That he then offered to transfer it to Hamilton Howell, one of the plaintiffs, that he might recover it to the use of himself and wife, and the other parties interested; but Howell refused to receive it. It then alleges that the bequest is a specific one, and that it was not the duty of the executor, Benjamin Howell, to collect it, but to deliver it over to the plaintiffs, or some one of them, whensoever required to do so; which (190) obligation was discharged by his offer to Hamilton Howell.

The evidence taken in the cause proves, that Benjamin Howell, the executor, did offer to deliver the bond to Hamilton Howell or Ransom Rose, two of the plaintiffs, that they might, if they chose, take the necessary steps to collect it; and they refused to receive it.

The cause has been regularly transferred to this Court for hearing. The only question presented by this case, and which the Court is called on to decide, is, whether or not it was the duty of the executor, Benjamin Howell, to collect the money due on the bond of Edward Sasser, and divide it among his children. We think it was not; it results from the very nature of the legacy, that such was not his duty. It is a bequest of a specific article, of a particular bond, and not of the money due upon it. The testator gives the bond, due to him from Edward Sasser, to his daughters. Such a legacy can only be satisfied by the delivery of the identical article or subject. 2 Wil. on Ex'rs., 740; Fonb. Treat. on Eq., B. 4, Part 1, Ch. 11, sec. 5, n. a. Thus, if a particular horse or negro is bequeathed, the executor can not sell the horse or negro and tender the money in his discharge; nor can he, with the money, purchase another horse or negro and tender that. He must keep the particular article, and have that ready to deliver, whenever a demand is made. It is true, the money due on this bond is its essence, and if, when the legacy was demanded, the executor had it ready to pay over, it is not to be supposed but what the legatees would take it. But what if, in the collection of the bond, he had received counterfeit money in payment, or the notes of a bank, which had subsequently failed — would the legatee be bound to receive them? Clearly not. He would say, my legacy was of (191) a bond, not money; and I demand the bond. We think, then, that the executor was not bound to bring an action on the bond against Edward Sasser, the obligor. On the contrary, it was his duty to retain it, subject to the demand of the legatees. This view of the case is an answer to the cases cited in behalf of the plaintiff, from 2 and 3 Brown, Ch. In Lawson v. Copeland, Lord Thurlow decided that an executor was liable, when he neglected to sue for money due the estate, so long as to enable the debtor to protect himself under the statute of limitations, because it was his duty to collect it. But it is said, the words "to be equally divided," in the bequest, show that it was the intention of the testator that the executor should collect the bond and distribute the money. The answer is, if such was his intention, he would have bequeathed the money and not the bond. We consider those words as indicating on the part of the testator, how the legatees should hold the bond. The executor offered the bond to Hamilton Howell and to Ransom Rose, two of the plaintiffs, to collect for their use, and the use of those who were jointly interested with them, thereby authorizing them, if necessary, to use his name in its collection; and he would, no doubt, at their request, have endorsed it without recourse, as it would have been his duty to do. In making this offer, we consider the executor as having discharged himself of all responsibility to them, and his administrator having the bond ready to deliver to any one legally authorized to receive it, the plaintiffs have no equity against his estate. We consider this an ungracious claim on the part of the plaintiffs. Edward Sasser, the obligor, was the father and father-in-law of the complainants — a man of wealth. Moreover, he is entitled, as the next of kin of those of his daughters who have died intestate, to their shares in the bond.

The plaintiffs are entitled to a decree for the delivery (192) of the bond; but they must pay all costs.

PER CURIAM. DECREED ACCORDINGLY.