Coleman v. . Hallowell , 54 N.C. 204 ( 1854 )

Sally Smith, by her last will and testament, bequeathed as follows: "I leave the sixth part of the money that is left after paying my just debts, to my son Joseph Smith, as agent for Phebe Bryan, to be put to her use annually, or as she requires it, with interest from the time it comes into his hands." The defendant John Hallowell, who was appointed executor, qualified and proceeded to execute the will. Phebe Bryan, the legatee above mentioned, died in the year 1850, leaving her (205) husband Bennet Bryan surviving. Bennet Bryan, the husband of Phebe, died eight days after his wife, without having administered on her estate, leaving a last will and testament in which the plaintiff, Jesse Coleman, is appointed executor, who qualified as such. John Hallowell also became the administrator of Phebe Bryan.

The bill is filed by Coleman, the executor of Bennet Bryan, against Hallowell as executor of Sally Smith and as administrator of Phebe Bryan, and against Joseph Smith, praying that whichever may have the fund in his hands may account and pay over the same to him, and for general relief.

The defendant Hallowell says in his answer that he had paid the amount in question to the trustee Smith, and Smith in his answer says that he had paid a part of the said legacy to Phebe Bryan in her lifetime, but that he has a part thereof still in his hands, and submits whether he is not by the will entitled to retain the same, discharged of the trust.

The cause was set for hearing on the bill, answers and exhibit, and removed to this Court. There is no difficulty in ascertaining the rights of the parties in this case. The legacy given to the defendant Smith, in trust for Phebe Bryan, whether given for her separate use or not, having never been received by her husband in her lifetime, would have accrued to him as her administrator, had he taken out letters of administration on her estate. But as he died without having done so, and the defendant Hallowell having taken them out, the latter is entitled to call upon the defendant Smith for the payment of the said legacy, or such part thereof as had not been paid to the wife in her lifetime; and then the plaintiff, as the executor of Bennet Bryan, the husband, is entitled to call upon Hallowell, as the administrator of the wife, for the same.

The plaintiff may have a decree upon these principles, which (206) are too well known to the profession to require a reference to any authority in support of them.

PER CURIAM. Decree accordingly.

Cited: Colson v. Martin, 62 N.C. 126.