Opinion · Nclaw North Carolina

TATE v. GREENLEE, 9 N.C. 486 (1823)

TATE, Adm’r, Adm’x, ETC., OF JOHN BOWMAN, v. GREENLEE'SADMINISTRATORS. — From Burke., 9 N.C. 486 (N.C. 1823)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1823-01-01
Topic: general

TATE v. GREENLEE, 9 N.C. 486 (1823) TATE, ADMINISTRATOR, ETC., OF JOHN BOWMAN, v. GREENLEE'SADMINISTRATORS. — From Burke.Supreme Court of North Carolina June Term, 1823. A bill was filed against executors, calling on them to account after a lapse of thirty-five years. Motion to dismiss on the ground of length of time refused, because, though it would be the height of injustice to suffer dormant claims to be brought forward after an unreasonable length of time when those and those only who could explain them were no more, and no satisfactory reason could be assigned for the delay, still, as in the case before the court the wife of the complainant was the meritorious claimant, as she married in her minority, and immediately upon her husband's death made herself a party to the suit, the bill ought not to be dismissed, but should go on to a hearing.

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TATEv. GREENLEE,9 N.C. 486(1823)

TATE, ADMINISTRATOR, ETC., OF JOHN BOWMAN, v. GREENLEE'S

ADMINISTRATORS. — From Burke.

Supreme Court of North Carolina

June Term, 1823.

A bill was filed against executors, calling on them to account after a lapse of thirty-five years. Motion to dismiss on the ground of length of time refused, because, though it would be the height of injustice to suffer dormant claims to be brought forward after an unreasonable length of time when those and those only who could explain them were no more, and no satisfactory reason could be assigned for the delay, still, as in the case before the court the wife of the complainant was the meritorious claimant, as she married in her minority, and immediately upon her husband's death made herself a party to the suit, the bill ought not to be dismissed, but should go on to a hearing.

THE bill, which was filed in 1815 by Tate, as administratorde bonis nonwith the will annexed of John Bowman, stated that John Bowman died in 1780, leaving James Greenlee, Charles McDowell, and John Greenlee, his executors; that all were since dead intestate, and that administration had been committed to the complainant; that James Greenlee, one of the executors named in the will, took upon himself the management of the estate of John Bowman and had returned an inventory and account of sales, the amount of which was a large sum of money; that besides the property contained in this inventory other property to a large amount came to the hands of James Greenlee and had never been accounted for by him, to wit, a large number of cattle, indented certificates issued for property and services rendered the public by John Bowman during the War of the Revolution, a quantity of tobacco, the rents and profits of certain lands belonging to John Bowman, and it was charged that several negroes bequeathed by the will of John Bowman to Mary Bowman, now the wife of the complainant Tate, were hired out by James Greenlee, before his assent to the legacy and before they came into complainant's hands; that JamesPage 275Greenlee died in 1813, and the defendants were his administrators, (487) and possessed of assets sufficient to satisfy all demands; that the complainant had required of the defendants to pay over to him the amount of Bowman's estate which had come into the hands of their intestate, but that they had refused to do so. It was further charged that the defendants had in their possession all the books of accounts and other evidences of John Bowman, also many memorandums and writings, which would disclose the certainty and amount of the several charges in the bill, and that the defendants had refused to deliver them to complainant, but fraudulently withheld them. The bill prayed particularly that the defendants might be compelled to disclose such facts connected with the charges of the bill as they had derived from papers in their possession belonging to the estate of John Bowman, and also might be decreed to account.

It was admitted by the complainant that, for seventeen years after his intermarriage with Mary Bowman, he lived in the immediate neighborhood of James Greenlee, and that Mary Bowman received the hire of the negroes mentioned in the bill; that Mary was the niece of James Greenlee, and married during her minority.

Wilson moved to dismiss the bill. (488)Gaston in answer.

HALL, J.

Replication has been entered to the defendant's answer, and the parties have proceeded to take depositions. The cause has been set for hearing and transferred to this Court for trial, and at this stage of it a motion is made to dismiss the bill on account of the length of time which has elapsed from the death of John Bowman until the filing of this bill. This motion might as well have been made when the suit was first instituted as at this time, because on such motion the matter contained in the bill only can be examined. The defendant's answer cannot be taken into view, because it is replied to, nor the depositions, because doubtful and disputed facts should be submitted to and be decided by a jury. Notwithstanding this, if a sufficiency appears upon the face of the bill to warrant a dismission of it, it ought to be done.

The bill states that John Bowman departed this life in the year 1780, and this suit seems to have been brought in the year 1815, after the lapse of about thirty-five years. It would be the height of injustice to suffer dormant claims to be brought forward after an unreasonable length of time, when those and those only who could explain them werePage 276no more, and no satisfactory reason could be assigned for such (489) delay. In the spirit of this remark the conduct of complainant's husband in not sooner asserting the rights of his wife to the property claimed by the bill (in case she had any) cannot be viewed with an indulgent eye, because it seems that after his intermarriage with complainant he lived thirteen years within two miles of defendant's testator and did not commence this suit until about two years after his death, although he had as perfect a knowledge of all the transactions between them (except as to the cattle) as he had when this suit was instituted.

But we must keep it in view that the wife was the meritorious claimant; that she intermarried with William Tate in her minority, and that after the death of her husband (the first moment she became a free agent) she made herself a party to this suit; for this reason I think the suit ought not to be dismissed, but made dependent upon facts hereafter to be ascertained at the hearing.

It may be, as has been argued, that defendants are ignorant of the manner in which their intestate managed the estate of his testator, and cannot give anything like a definite answer to the allegations contained in the bill. For that reason it is to be regretted that he had not guarded against the event that has taken place by having made a settlement with complainant and her husband during their lives, which he amply had it in his power to do.

For all these reasons I think the bill should not be dismissed, but should go on to a hearing.

TAYLOR, C. J., and HENDERSON, J., concurred.

PER CURIAM. Motion to dismiss denied.Cited: Falls v. Torrance, post, 491;S. v. McGowen,37 N.C. 17;Shearinv. Eaton, ib., 284.

(490)