Johnson v. . Corpenning , 39 N.C. 216 ( 1845 )

Upon the pleadings and proofs, the case appears to be this: Abraham A. Strange made his will on 13 October, 1814, and therein, after some small specific legacies, gave all the residue of his estate, real and personal, to his wife, Mary (217) A. Strange, during her natural life, and then to his twelve children, who are mentioned by their several names, equally to be divided between them; and appointed his wife, and his son, Nelson A. Strange, and his son-in-law, James Coffee, the executors. The testator died soon afterwards in Wilkes County, where he resided at the time of his death, and for several years before. In July, 1815, the will was proved in the County Court of Wilkes, and probate was granted to the widow and Nelson A. Strange, who alone qualified. The estate consisted of land, several slaves, and other articles of personal chattels; and after disposing of enough to pay the debts, the whole residue was taken and held by Mrs. Strange, as devisee and legatee, until her death in November, 1842, except as hereinafter mentioned.

The bill was filed in September, 1843, and states that, while Mrs. Strange was seized of the land and possessed of the slaves, under the gift to her for life, Nelson A. Strange pulled down and removed a barn and other houses, situate on the land, and also sold one of the slaves for the price of $400, which he converted to his own use; and that in like manner he disposed of other parts of the personal property, and that he never accounted for any part thereof.

The bill then states the subsequent death of Nelson A. Strange, intestate, and that administration of his estate was granted to his widow, Ann Strange, and Joseph Corpenning, who are defendants in this suit; and that afterwards, namely, in February, 1843, James Coffee, who was appointed one of the executors of the will of Abraham A. Strange, renounced the said office, that is to say, in the County Court of Henderson County, and thereupon, that Court granted letters of administrationcum testamento annexo de bonis non to the plaintiff, William T. Johnson. The prayer is for an account in the premises and payment. (218)

The defendant, Mrs. Ann Strange, did not administer on the estate of her deceased husband, and she insists thereon in her answer.

The defendant, Corpenning, after admitting that he is the sole administrator of Nelson A. Strange, insists in his answer on several matters of defense; of which it is not material to mention more than the following, as they have been deemed by the Court fatal to the plaintiff's case. The first is, that in respect to the injury to the real estate, the plaintiff had no right, but that the right was exclusively in the devisees in remainder. Another is, that the testator charged his executors with no duty touching the personal estate after the death of his widow, and that the executor's assent to the legacies of the tenant for life, vested the slaves absolutely in her, and in the remaindermen according to their respective interests. Thirdly. That none of the other personal chattels were used by Nelson A. Strange, but all were kept and enjoyed by Mrs. Mary A. Strange alone, and were consumed or worn out in the necessary use of them by her as tenant for life; and also, that if any person were chargeable therefor, the said Mary A. was, and that she left personal assets more than sufficient to cover the value thereof, and that the plaintiff is the administrator of her estate, and the assets as aforesaid came to her hands. Lastly, that the Court of Henderson County had no jurisdiction to receive the renunciation of Coffee, the surviving executor of Abraham A. Strange, or to grant the administration of the plaintiff. With the land, the personal representative has no concern. The will creates no trust respecting it; and upon the death of the widow, it went directly to the (219) remaindermen. As to that, therefore, the bill would have to be dismissed.

Upon the second point, the rule is clear, that, like specific legacies, the slaves, given in the residue, vested by the assent of the executors in the tenant for life and the remaindermen. There are several decided cases in this Court on the question; but it is only necessary to refer to Smithv. Barham, 17 N.C. 420, and the late case of Etheridge v. Bell, 27 N.C. 87, as they are directly in point. Therefore, the plaintiff, as administrator, could have no redress, even supposing Nelson A. Strange sold the negro and converted the price to his own use.

It may be that Nelson A. Strange might be liable, because as an executor he did not attempt to sell the other articles constituting the residue, so that the tenant for life should have the interest of the fund, instead of allowing her to consume the articles. Without considering the effect on his liability, of the fact that the widow was also executrix, and was as much entitled as he was to the possession of the assets, and to assent to the legacy to herself, but supposing that he might be chargeable therefor, yet it is clear, that he ought not to be chargeable to the plaintiff in the first instance, if it be true that the executrix and tenant for life had the sole benefit of those articles, and left assets to more than their value, which have come to the plaintiff's hands, as her administrator. That would be a proper subject for an inquiry, which would be directed, if a result thereof favorable to the plaintiff could possibly enable him to maintain this suit. But, as the Court thinks that could not be, on the ground that will be next mentioned, it is useless to direct the inquiry.

The fourth objection is to the validity of the grant of administration to the plaintiff, which goes to the whole bill. Upon that, Laws of 1777 and 1789, Rev. St., Ch. 46, sec. 1, and Ch. 122, sec. 6, are decisive. They require will to be proved, and letters testamentary and letters of administration (220) to be granted in the court of the county where the testator or intestate resided at the time of his death. If done in any other court, in case the party deceased had a residence in this State, it is void.Collins v. Turner, 4 N.C. 541; Smith v. Munroe, 23 N.C. 345. Besides, it is a contradiction and absurdity, after the probate of a will in one court, that another court should pretend to grant a probate thereof to another person named therein an executor, or receive the renunciation of such person, and grant, to yet another, administration cum testamentoannexo. For such grants consist of a copy of the will, as proved, and the acts thereon of the Court taking the proof, officially certified. 1 Wms. Ex'or., 158; and that can not come from any court but that which has the custody of the original. When, therefore, the bill states that the Court of Henderson granted to the plaintiff letters of administration "with the will annexed," it states that which can not possibly be true; and unless it were true, the plaintiff could not institute this suit.

The bill must therefore be dismissed, and costs to each dedefendant [defendant].

PER CURIAM. DECREED ACCORDINGLY.

Cited: London v. R. R., 88 N.C. 588.