Opinion
(June Term, 1838.)
The acts of 1723 and 1794, Rev. Stat., ch. 46, secs. 11 and 12, directing the mode of selling the personal property of descendants, is merely directory, and does not affect the power of sale vested in the executor by the common law. It should, however, always be followed, as in the absence of fraud it is a complete protection to the executor.
THE case made by the pleadings and proofs was that Peter Wynns by his will gave to his wife, Elizabeth Wynns, a negro woman for life, with remainder to his children; that his executors exhausted all his assets in the payment of his debts, excepting that slave and a horse; that they then settled their accounts with the county court, when it appeared that the sum of $181,141, was still due for outstanding debts of the testator; that the widow agreed with the executors for the purchase of the slave and horse, upon the terms of paying those debts; that this agreement was perfectly fair, and the sum agreed to be paid was a full price for the slave and horse; that the widow continued in possession of the slave for many years, and gave, of her issue, several other slaves to the defendants, who were his children, or who had married her daughters. The plaintiff, a son of the testator, filed this bill, claiming an interest in this slave and her issue, and praying to have his share of them (59) assigned to him.
W. J. Alexander for plaintiff.
Caldwell for defendants.
It appears to us that the title to the slave, which, at law, was in the executors, was bona fide, and for a full consideration transferred by the executors to the widow. The act of Assembly (Rev. Stat., 275) provides, when the estate of a person deceased shall be so far indebted that the debts cannot be discharged by the moneys on hand, or by the sale of the perishable commodities, then it is and shall be the duty of every executor or administrator to sell the goods and chattels at public advertisement, first obtaining an order of the court of the county for that purpose. The executor or administrator might before the passage of the act have sold bona fide the goods and chattels of the testator or intestate. The legal title was in him, and an honest purchaser from him would always have acquired a good title. The common law on this subject is not repealed by this act. The statute is only directory, which, however, it would be well always to follow, for if the executor or administrator fails to obtain as much at private sale as would have been got at public vendue, he or they would be bound to make good the deficiency out of their own pockets. Cannon v. Jenkins, 16 N.C. 427. We are of opinion, from a full examination of this case, that the plaintiff has no ground to entertain this bill, and that the same must be dismissed. Costs are not given to the defendants, because, the purchase not having been made in the mode directed by the act of Assembly, the defendants ought to bear a share in the expense of investigating the good faith of the transaction.
PER CURIAM. Dismissed without costs.
Cited: Dickson v. Crawley, 112 N.C. 632; Odell v. House, 144 N.C. 648. (60)