Opinion · Nclaw North Carolina
WHITBIE v. FRAZIER, 2 N.C. 275 (1796)
WHITBIE'S ADMINISTRATORS v. FRAZIER., 2 N.C. 275 (Superior Court of North Carolina 1796)
- Type
- Opinion
- Court
- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1796-01-01
- Topic
- general
WHITBIE v. FRAZIER, 2 N.C. 275 (1796) WHITBIE'S ADMINISTRATORS v. FRAZIER.Superior Court of North Carolina (April Term, 1796.) If the husband dies before administration taken upon his wife's choses in action, her administrator, and not his, is the proper person to administer them; but the husband's representative will be entitled to the surplus after payment of her debts. DETINUE. The mother made a gift of the negro in question to Sarah, the daughter, to take effect in possession after the death of the mother.
Citator
UpLaw has not yet analyzed WHITBIE v. FRAZIER, 2 N.C. 275 (1796). The absence of a flag is not a finding that it is good law.
WHITBIEv. FRAZIER,2 N.C. 275(1796)
WHITBIE'S ADMINISTRATORS v. FRAZIER.
Superior Court of North Carolina
If the husband dies before administration taken upon his wife'schosesin action, her administrator, and not his, is the proper person to administer them; but the husband's representative will be entitled to the surplus after payment of her debts.
DETINUE. The mother made a gift of the negro in question to Sarah, the daughter, to take effect in possession after the death of the mother. Sarah married and died, and then the mother died, the husband surviving, and last of all the husband died, without taking, administration to his wife. The administrator of Sarah now uses for the negro. It was objected that the property in the negro passed into the husband upon the death of the wife, he being her next of kin; that he was entitled to administration, and was not liable to make distribution; and though he died before administration taken out, that cannot prejudice him with respect to any right he had as next of kin; that his wife's personal estate, not yet reduced into possession at her death, vested in him as a legacy, or as a distributive share, that will go to the representatives of the sharer, and that as this was a vested interest in the husband, his representatives succeeded to his rights, and not the representatives of the wife; and therefore they, and not the representatives of the wife, are entitled to this action; and for this were cited 1 Wils., 168; 3 Atk., 537; Lovel., 73, 82, 85; Pre. ch., 21, 260; 3 P. Wil., 443.
The Court took time to consider, in order, as they said, that this cause might be specially made up for the further consideration of the judges, should the objection appear upon further reflection to be of weight enough to raise a serious doubt; and after some days consideration they gave their opinion.
PER CURIAM.
It is not necessary to make up the special case; this action was formerly brought by the administrator of the husband, and determined by two judges to have been improperly brought for that very reason. One of the Court now present, on hearing this matterPage 216(276) first moved, was inclined to think the action should have been in the name of the administrator of the husband, but upon further consideration he is convinced of his mistake, and it was occasioned by not distinguishing between the right of property and the right of action. It is a true position that the property of this negro was vested in the representative of the husband, in the same manner as a legacy is vested in the legatee, or a distributive share in one of the next of kin, who, if he dies, will transmit his share to his representative, in this case the husband was entitled as next of kin, and not as husband, and by his death hath transmitted the right he had to his representative; that was only a right to demand the negro of the administrator of the wife after debts paid. No person is entitled to receive this negro in the first instance, but only as administrator of the wife, to the end that her property in the hands of her administrator may be subject to the payment of all just debts contracted by herdum sola. The husband was indeed entitled to be her administrator, but he did not apply; another might be appointed, who will be a trustee for the husband as to all that part of the wife's choses in action that such administrator shall recover or get in above what will satisfy her debts. This administrator is entitled in the first place to the possession of all her choses in action, and is accountable to the husband, or the representatives of the husband, in the same manner as he would be accountable in other intestacies to a distributive sharer and his representatives; so it would be of no use to make up this special case, all the judges of the State being of this opinion, the other judges now upon the other circuit having decided this very case before, and the two now present, being of the same opinion. So the plaintiff had judgment. The Court relied upon Co. Litt., 351; H. B., 538.Cited: Johnston v. Pasteur,1 N.C. 582,583;Lewis v. Hynes, post, 278;Kornegay v. Carroway,17 N.C. 406;Weeks v. Weeks,40 N.C. 120;Wooten v. Wooten,123 N.C. 223.