Opinion · Supreme Court of North Carolina

Helme v. . Sanders

Helme v. . Sanders, 10 N.C. 563 (N.C. 1825)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1825-06-05
Topic: general

On the trial the plaintiff produced in evidence a judgment (564) quando acciderint in Johnston County court, May Term, 1817, in favor of the present plaintiff, against John Sanders as executor of Ellick Sanders for $127.31. To prove a devastavit he then offered the inventory returned by John Sanders as executor at November Term, 1815, wherein he made a list of several promissory notes due Ellick Sanders, as being in his hands, and among them the note of one Davis, due in 1811, on which there remained due 77l. 10s., and at the bottom of the inventory were these words: "The above notes are considered desperate, and I will only be charged with them if collected." Plaintiff then proved that Davis was solvent, and it also appeared that he resided in Columbia, South Carolina, and had there resided some time before the death of Ellick Sanders. It was also in evidence that John Sanders had twice sent the note to South Carolina and requested payment of it from Davis, who refused, assigning as a reason the want of money. Defendant offered in evidence judgments quando, obtained by different plaintiffs against John Sanders as executor of Ellick Sanders, at August sessions, 1816, of Johnston County court, to the amount of $1,000 and upwards; none of which, however, had been paid, nor had any process been sued out on them by the plaintiffs therein. For the plaintiff it was contended that the executor of Ellick Sanders had been guilty of a devastavit so as to charge him in this action by no…

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HELMEv. SANDERS,10 N.C. 563(1825)

HELME v. RANSOM SANDERS, ADMINISTRATOR OF JOHN SANDERS,

WHO WAS EXECUTOR OF ELLICK SANDERS.

Supreme Court of North Carolina

June Term, 1825.

It is the duty of an executor here to take out letters testamentary in another State for the purpose of suing for a debt due there, if the interest of the estate which he represents requires it; and in determining this latter point the magnitude of the debt, the distance and probable expense, are to be considered. An omission to do it, when necessary, amounts to adevastavit.

DEBT upon a judgmentquando, suggesting adevastavitin John Sanders as the executor of Ellick Sanders, tried beforeDaniel, J., at JOHNSTON. The suit was originally brought against John Sanders, and after his death the present defendant, his administrator, was brought in bysci. fa.

On the trial the plaintiff produced in evidence a judgment (564)quando acciderintin Johnston County court, May Term, 1817, in favor of the present plaintiff, against John Sanders as executor of Ellick Sanders for $127.31. To prove adevastavithe then offered the inventory returned by John Sanders as executor at November Term, 1815, wherein he made a list of several promissory notes due Ellick Sanders, as being in his hands, and among them the note of one Davis, due in 1811, on which there remained due 77l. 10s., and at the bottom of the inventory were these words: "The above notes are considered desperate, and I will only be charged with them if collected."

Plaintiff then proved that Davis was solvent, and it also appeared that he resided in Columbia, South Carolina, and had there resided some time before the death of Ellick Sanders. It was also in evidence that John Sanders had twice sent the note to South Carolina and requested payment of it from Davis, who refused, assigning as a reason the want of money.

Defendant offered in evidence judgmentsquando, obtained by different plaintiffs against John Sanders as executor of Ellick Sanders, at August sessions, 1816, of Johnston County court, to the amount of $1,000 and upwards; none of which, however, had been paid, nor had any process been sued out on them by the plaintiffs therein.

For the plaintiff it was contended that the executor of Ellick Sanders had been guilty ofa devastavitso as to charge him in this action by not suing for and recovering the amount of the note of Davis. On this point the court charged that an executor, qualified to a will in this State, is not bound, nor can he bring suit for money due his testator beyond its limits and jurisdiction, and further, that an executor named in a will, by proving the same here and taking out letters testamentary creates thereby no legal obligation on himself to take out lettersPage 303testamentary in another State, so as to recover by suit money (565) due his testator in that State, though he may do so, and he may receive the money without suit, and give a discharge of the debt, when it will become assets with which he is chargeable.

The plaintiff submitted to a nonsuit and, a new trial having been refused, appealed.

Haywood for plaintiff.Devereaux contra.

HALL, J.

I think an executor ought to use the same diligence in collecting the debts of his testator as he would use in collecting his own, provided he is a man commonly careful and diligent in the management of his own affairs, and this without regard to the consideration whether the debtor lives in one State or another. All the personal estate of the testator, wherever it is, belongs to the executor. 6 Co., 47. And he ought to use ordinary diligence to collect it. 2 Brown, 186, Bac. Ab., Executor, B. 2. Perhaps to collect a small debt in a distant State would cost more than the amount of the debt; but every case must depend upon its own circumstances. Procuring letters testamentary in another State is not of itself a decisive objection. As the jury were otherwise informed, I think there should be a new trial.

Another objection is made in this Court, and that is to the action being revived against the administrator of John Sanders.Arnold v.Lanier,4 N.C. 143, decides this case. That was an action of deceit, brought against an executor for the deceit of the testator in selling an unsound slave.Judge Seawelldelivered the opinion of the Court as follows: The act of 1799 declares that no action of detinue or trover, or action of trespass, where property, either personal or real, is in contest, and such action of trespass is not merely vindictive, shall abate by the death of either party. This is an action of trespass, though notvi et armis, and the passions and feelings have no concern; it is in fact to recover for an act done by the defendant's testator, (566) whereby he has been made richer and the present plaintiff poorer; wherefore, we are all of opinion that the plaintiff is entitled to judgment. The same remark is applicable to the present case. I, therefore, think this objection not a good one.

HENDERSON, J.

The law of the domicil of the owner governs the transfer and transmissionab intestatoof goods. A will, therefore, made according to the forms of that domicil passes such property wheresoever it may be situated; and if proven in the courts of that country, when offered in evidence in a foreign country, proof is not gone into of the execution of the will, but only of the probate. Such foreign probate,Page 304therefore, authorizes the executor to receive debts, take into his possession the property of his testator, and to do all acts appertaining to his office, except sustaining the character of an executor when he is thereus actoror plaintiff in a cause in court; this character he cannot sustain here, not for want of right, but for want of such documentary evidence of the right that the court can see upon an inspection (for the court does not, at that stage of the business, go into proof) that he is executor; he cannot, therefore, make profert of his letters testamentary, obtained in a foreign country, for want of authentic documentary evidence which our courts can recognize without proof. He must, therefore, obtain letters testamentary here. But this is not obtained by proving the will herede novo, for in that case it would be makingourlaw, and not the law of the place where he had his domicil, the rule of decision. Our court of probate goes into evidence as to the fact of the foreign probate only, and, if satisfied of that fact, issues letters testamentary; that is, gives documentary evidence which our courts recognize as genuine. The taking out letters here is nothing more than obtaining the proof (567) necessary for the executor to sustain his real character in our courts, owing to our forms. If, therefore, the interests of the testator require it, the executor is bound to do it. It is adevastavitto omit it if thereby the estate sustains a loss. The magnitude of the debts to be sued for, the distance, the expense, are to be taken into consideration in ascertaining whether the interest of the estate requires it. But when the probate has been made in a sister State we think that the Constitution of the United States, and the law of the United States thereupon, gives to the probate, when authenticated according to the law of the United States, such an authentic form as that our courts will recognize the probate without proof, and that such probate may be proffered to the court to sustain the character of an executor. So that, take it either way, the executor has been guilty of adevastavitin not attempting to collect the debt due in South Carolina, and, therefore, there should be a new trial. In saying that goods are regulated in their transfer and transmissionab intestatoby thelex loci, we do not include such property as owes its origin to the peculiar laws of any particular country, such as stock in bank and other corporate bodies. Such property is a creature of the law, and may be regulated by the will of the Legislature of that country which gives such property existence.

PER CURIAM. Reversed.Cited: Governor v. Williams,25 N.C. 154;Hyman v. Gaskins,27 N.C. 271,275;Lancaster v. McBryde, ib., 423;Williams v. Williams,79 N.C. 420;Grant v. Reese,94 N.C. 730;Moody v. Johnson,112 N.C. 802;Hallv. R. R.,146 N.C. 346.Page 305

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