Godwin v. . Watford

Merrimon, C. — after stating the, facts: This case was not argued in this Court for the appellant, and we find it difficult to determine what the precise purpose of the appeal is. We learn, from the brief of the appellee, that “the only question presented for solution by the Court is, whether there is a proper case for the intervention of a Court of Equity to protect a fund now in the hands of” the appellant executrix. Or,'stating the question with more directness: Does the complaint state facts sufficient to constitute a cause of action? The precise purpose of the action does not appear very clearly from the complaint, but it is, certainly, as we understand it, to compel the defendant executrix to an account of the estate of testator in her hands, to recover the property, legacies and distributive shares by those entitled to have the samé, and to protect the property pending the action. Such being the purpose, a cause of action is alleged, and the Court had jurisdiction of the subject-matter. It is not alleged that two years had elapsed next after the qualification of the executrix at the time the action was begun, but it is alleged that the estate is wholly solvent, “ and there is no reason why any executrix under the will should retain any part of the fund in hand,” and this is expressly admitted by the answer. In such case the executrix may be compelled to account and to pay legacies before the lapse of two years next after the qualification. The Code, § 1512; Clements v. Rogers, 91 N. C., 63, and the cases there cited. *171 The jurisdiction and powers of the Court, in such actions, are very comprehensive as to the purposes contemplated by them. It is competent in them “to order an account to be taken, by such person, or persons, as said Court may designate, and to- adjudge the application or distribution of the fund ascertained, or to grant other relief, as the nature of the case may require.” This implies ample power in the Court to protect the property, by appropriate ways and means — to grant an injunction, appoint receivers, etc., etc., in such cases. The Gode, §1511; Bratton v. Davidson, 79 N. C., 423; Pegram v. Armstrong, 82 N. C., 326; Stenhouse v. Davis, id., 432. Judgment affirmed.