Opinion
(June Term, 1854.)
Any matter, which has a bearing upon the right of the plaintiffs to a decree for an account, comes up at the hearing, when the decree for an account is asked for; but a matter of charge, i.e., what does or does not, form a part of the fund, or of discharge, cannot then be gone into, and comes up regularly by exceptions to the report of the Master.
CAUSE removed from the Court of Equity of YADKIN, at Fall Term, 1853.
No counsel appeared for the plaintiff.
Winston and H. C. Jones, for the defendants.
The case is sufficiently stated in the opinion of the Court.
Smith Dozier died, having his domicil in South Carolina, 10 December, 1831, leaving him surviving the plaintiff, who was his only child, and his widow, who is one of the defendants.
The widow was appointed administratrix and sold much of the property and paid off the debts and then removed to this State, bringing her only child, the plaintiff. She afterwards married the other defendant, and the object of the bill is to have an account of the estate of Smith Dozier. Among other things the bill charges that the intestate owned a slave named Sandy, who is still in the possession of the defendants and is of great value, being a "first-rate tanner"; and it is insisted that Sandy, together with the profits and hires that have been or ought to have been made, form a part of the estate of the intestate, for which the defendants are bound to account.
The bill also charges that the intestate purchased from Mary Bright, the mother of his wife, an undivided share in many slaves, or that he acquired a right to them as husband of the defendant (153) Elizabeth, by reducing them into possession in his life. A discovery is asked in regard to these slaves, and it is insisted that they, or the price of such as have been sold, form a part of the estate for which the defendants are bound to account.
The defendants submit to a decree for an account of the estate of Smith Dozier, but they say that in regard to the slave Sandy he was sold by the administratrix at public sale and purchased by her. That the sale was in all respects regular and the price a fair one; and that by the law of South Carolina an administrator may be a purchaser at his own sale, provided it is regular and he pays a fair price. In regard to the slaves conveyed by the deed of Mary Bright, the defendants insist that it was a gift to Elizabeth and her other children of their mother's interest and right to the estate of their father; and that as her husband died before the estate was settled and the property divided, the right survived to her.
There was replication and commissions, and after taking much testimony the cause was removed to this Court.
Upon the opening of the case it was suggested to the defendants' counsel (the plaintiff having no counsel in this Court) that as the defendants submitted to a decree for an account there was at this stage of the proceeding no issue or question for the Court to act on; and that the matter in regard to Sandy and the slaves derived from Mrs. Bright would properly come up upon exceptions to the report. The counsel, however, insisted that they were entitled to have the question now heard so that the decree for an account might be made with instructions in regard to these matters; and they pressed it on the ground that a declaration of the facts and of the opinion of the Court thereon would save much trouble before the Master.
We have considered the subject and have come to the conclusion that according to the course of the Court we cannot now make any declaration, and the decree must be in the usual form to take an account (154) of the estate of the intestate that did or ought to have come to the hands of his administratrix.
The plaintiff, upon the hearing, is required to make such proof only as will entitle him to the decree he asks for in the first instance (Adams Eq., 362). In our case the plaintiff asks for a decree to account. The defendants submit to it. So no proof was necessary, and after replication a decree for an account ought to have been made as of course. If, therefore, we should at this stage of the case make a declaration in regard to the slave Sandy or the slaves derived from Mrs. Bright, the plaintiff might well say: "I am taken by surprise. I prepared only such proof as was necessary to entitle me to a decree for an account and that proof was supplied by the answer. When the matter comes before the Master I hope to be prepared to show what belonged to the estate of the intestate and should be a charge, and also to meet any false claim of discharge."
It will be seen at once, that at this stage of the case the only question is, Are the defendants bound to account? No other question is now presented and of course no other question ought now to be decided. For instance, a bill charges a partnership or an agency, and prays for an account — the relation of partner or agent is denied — at that stage of the case the fact of the alleged relation is the only question. Or suppose the bill charges that the defendant is the administrator of the plaintiff's father and is bound to account, the relation being admitted, there can, at that stage of the case, be no other question.
The rule is this: any matter which has a bearing upon the right of the plaintiff to a decree for an account comes up at the hearing when the decree for an account is asked for — but a matter of charge, i. e., what does or does not form a part of the fund, or of discharge, cannot then be gone into, and comes up regularly by exception to the report of the Master. Law v. Hunter, 1 Russ., 101; Ib., 107; Tomlin v. (155) Tomlin, 1 Hare, 245. The propriety of this rule of practice is so obvious that it seems hardly worth while to say much about it; but for the sake of those members of the profession whose clients suffer by an unnecessary delay in this stage of the case, we extract and adopt the language of 2 Daniel, 997: "In the case of a plaintiff it is sufficient to prove so much only of the allegations in the bill as is necessary to entitle him to a decree. Thus, when the suit is for an account, all the evidence necessary to be read at the hearing is that which proves the defendant to be an accounting party, and then the decree to account follows of course. Any evidence as to the particular items of an account, however useful it may be in a subsequent stage of the cause, would be irrelevant at the original hearing. For this reason, when the suit is against an administrator, all that is necessary to prove on the part of the plaintiff is that the defendant fills and has acted in that character."
It is suggested that as the domicil of the intestate was in South Carolina, the plaintiff, as next of kin, has no right in this State to call for an account, and that the suit ought to have been in the name of an administrator appointed in this State. We have considered the question and think it clear that as the intestate, at the time of his death, had no effects in this State, administration could not be taken here, and consequently that the suit is well brought in the name of the next of kin, who is entitled to have the same relief in our Court that he could have had in the Court of his father's domicil, but for the accident of the removal of the parties to our State. The removal and its consequences did not in any point of view originate a right on the part of the intestate upon which our Courts could grant letters of administration. The injury, if any, was done to the plaintiff or next of kin.
The plaintiff is entitled to a decree for an account.
PER CURIAM. Decree accordingly.
Cited: Hairston v. Hairston, 55 N.C. 125; R. R. v. Morrison, 82 N.C. 143; Neal v. Becknell, 85 N.C. 302; Chalk v. Bank, 87 N.C. 202; Royster v. Wright, 118 N.C. 154.
(156)