Opinion · Supreme Court of North Carolina
Ryden v. Jones.
8 N.C. 497
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1821-06-05
- Topic
- general
Tavxor, Chief-Justice. It has now become a settled rule of equity, too firmly established to be shaken, that a trustee shall gain no benefit to himself by any act done by him in his fiduciary character ; but that all his acts shall be for the benefit of the cestui que trust. It is not necessary in the view I take of the case, to enquire whether an executor comes within the rule as established in England, though in the case of Barden v. Barden, 18 *505 Ves. 170, it was decided that an executor cannot purchase his testator’s effects ; because our local laws have materially changed the rights and duties of an executor. The act of 1723, cli. 15, explained and modified by se-yeral subsequent acts, restrains the executors from selling the unperishable estate without an order of Court; and as the law now stands, the County Courts are to judge of the necessity of a sale either to make distribution or to pay debts.
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The answer of Jones stated that he had no knowledge which would enable him to say what assets of Michael Hyman came to the hands of James, but referred to the returns of James Hyman made to Craven Court; that he, this defendant, never had any assets of Michael Hyman in his hands, to his knowledge or belief; that his testator, James, had paid and satisfied Lewis Savanoe, husband of the petitioner, Mary Savanoe, whatever legacy, right, interest or demand she had, and had the release of said Lewis and Mary to produce; that he was ignorant whetherPage 278James Hyman ever settled with Elizabeth Ryden and her husband, Benjamin, or either of them, for any claim they might have under the will of Michael Hyman, or not; that, as to the slave, Frank, he had understood and believed that he was part of the estate of Michael Hyman, sold by James Hyman, as his executor, and purchased fairly at a public sale of the effects of the said Michael, on credit, by Philip Turner, to the use of James Hyman, who had charged himself with the purchase money and accounted with all the persons named as interested therein, save Elizabeth Ryden; that James Hyman, by will, gave Frank to Fanny Hukins, and that Frank came to the hands of the defendant as James Hyman's property; and that, as (499) executor, he disposed of him and was ready to account with any person lawfully entitled to call on him.
On the several issues submitted to the jury they found the facts to be as follows: That the negro, Frank, was sold at public auction by James Hyman, as executor, and purchased by Philip Turner for said executor, in March, 1794; that the sale was fair and necessary, and that the slave brought his full value; that all the residuary legatees of Michael Hyman were present at the sale, except Savanoe and his wife, and that all the persons entitled to distribution in the negro assented to the sale. They further found that Elizabeth Ryden died two or three months after the sale; that James Ryden obtained letters of administration on her estate in September, 1816; that she was covert at the time of the sale and at her decease; that Benjamin Ryden, her husband, died in 1797; that letters of administration on his estate were granted to James Hyman in September, 1797, and that Benjamin and Elizabeth Ryden left three children — James, the petitioner; Gatsey and Elizabeth Ryden, the last of whom was at that time eleven years old; that James Hyman made a settlement of his accounts, as executor of Michael Hyman, in March, 1796; that on 6 January, 1794, he returned an account of sales, which was signed by the then sheriff of the county.
On this finding, it was considered byNorwood, J., who presided below, that the petitioners take nothing by their petition, but that the same be dismissed; whereupon the petitioners appealed.
The length of time cannot have any effect on the petitioner's rights, under the circumstances of the case. It is an open, unexecuted trust, and it is not pretended that the share of the price for which Frank was sold has ever been paid to Elizabeth Ryden or her representatives.