Opinion
(December Term, 1830.)
1. A creditor of an executor who has taken a security for his debt upon the assets of the testator with notice cannot hold them against the legatees.
2. A single act of maladministration cannot be made the foundation of a suit against an executor; but the whole administration must be inquired into; and if the frame of the bill does not permit this, it must be dismissed.
3. A bill brought by some of the persons entitled under a residuary clause in a will, without making the others defendants, or accounting for the omission, cannot be supported.
From LINCOLN. The bill was filed by three of the infant children of William Huson. It stated that their father by his will devised as follows: "I will that my wife, Mary Huson, shall have such part of my land as she, with her children and negroes which are left to her, can attend under crop annually, during her natural life or widowhood, and the balance of cleared land I will that it be rented out annually by any executors until my children come of age to take it into their own possession. As to my negro woman, Tempe, and my two negro boys, Stephen and Leo, my will is that these negroes be hired out annually, and the moneys arising from their hire be appropriated to schooling my children, or as much of it as may be necessary to give them a good English education, and the balance of the said hire (if there be any) shall be reserved to meet accidental occurrences (the death of slaves specifically bequeathed), if these should happen; if no such occurrence should arise to call for a particular distribution of the above moneys, then and in that case my will is that it be equally divided among all my children; and I will that these negroes directed to be hired out be hired until my youngest child comes of age; after this, they shall be equally divided among all my children." That all the executors, except Mary Huson, (464) the mother of the plaintiffs, refused to qualify, and that she alone proved the will; that she wasted the estate, and married one Friddle, who was made a defendant; that Friddle executed a lease to McKenzie for the land, and also hired to him the two male slaves mentioned in the will, as a security for a debt; that this lease and hiring were in fraud of the trust reposed by the testator in his executrix, the wife of Friddle, and that the plaintiffs did not receive from the rents of the land and the hire of the negroes that education which their father designed they should have, as it was entirely consumed in paying Friddle's debt to McKenzie. The prayer was that the land and slaves might be surrendered by McKenzie, and rented and hired by the master, for the purpose of educating the plaintiffs.
Gaston for plaintiffs.
No counsel for defendants.
The will of Mason Huson was filed as an exhibit, and it appeared from it that he left six children, and his wife enciente with another, to five of whom, and the one unborn, he had bequeathed the residue of his estate, as a daughter, Elizabeth, had been provided for by her grandfather.
The defendant McKenzie, who alone answered, admitted the conveyance by Friddle as charged in the bill, but insisted that he was not accountable for a waste of the assets committed by Friddle or his wife.
The bill is filed for the purpose of setting aside a conveyance made by Friddle and wife to the other defendant, on the ground that the executors fraudulently conveyed, in payment of a private debt, the estate of their testator, which they held by the express terms of the will, in trust for the children of the testator. The Court has looked into the will and the answer of McKenzie, and it thence appears plainly enough that the deed cannot stand unless upon the general accounts of the estate, debts of the testator or a balance due the (465) executrix shall be found to justify such a disposition of the property as has been made. Upon the merits, as now indicated, there would be no hesitation in decreeing the relief prayed. But the will itself is so fatally defective that nothing can be made of it. The will carries the rent of the lands, and the negroes, and their hires and issues, first to the education of the children, and then into the general residue of the estate, after making up such losses as might occur in the legacies by the death of the slaves specifically bequeathed; and the will shows five children, besides Elizabeth (who is excluded from the residue) and the unborn child of which the testator thought that his wife might be enciente. The bill is brought by only three of the children, without making any of the other parties, or assigning a reason for the omission, and it prays simply that this conveyance may be declared void and the estates conveyed to some other trustee.
It is impossible that isolated acts in the course of an administration can be made the subjects of a suit. Their merits cannot be determined without going into the whole estate, and there is nothing in the pleadings to cover such an extended inquiry. The Court cannot permit litigation to be multiplied by splitting up a maladministration into all its particulars, and making each the subject of a suit. The whole forms but one trust and subject of litigation. Parties under such a practice as is attempted, would be ruined by costs, and the court harassed continually by repeated investigations of the same matter. Besides, all the parties in interest must be before the court. How can we declare the conveyance void, and deprive the executors of the trust, and appoint another trustee, without knowing the wishes of the other legatees? If, indeed, a formal party alone were waiting, the Court might overlook it, or send the case back, to have the defect supplied. But here the (466) cause is brought to a hearing upon a bill so entirely founded on a misconception, and defectively framed, that it is incapable of amendment, without making a new case altogether.
PER CURIAM. Decree that because it appears from the will of Mason Huson in the pleadings mentioned that there are, besides the plaintiffs, other residuary legatees, who by said will are entitled to shares in the testator's estate, and particularly in the portions of it in controversy in this cause, and they are not made parties to the suit, nor any reason assigned for the omission; and because no general account of the testator's estate is sought in the bill, or can be taken under it, the bill is dismissed with costs. But declare that this decree is without prejudice to any proper bill to be brought by the plaintiffs for such general accounts, including the subject-matter of the present bill.
Cited: Clark v. Edney, 28 N.C. 53; Ward v. Turner, 42 N.C. 75.