Baker v. Raleigh & Gaston Railroad

Smith. C. J., after stating the case. The statute .which authorises the action to be brought by the personal representative of the deceased declares and directs that the amount recovered in such action is not liable to be applied as assets in the payment of debts or legacies, but shall be disposed of as provided in this act for the distribution of *310 personal property in case of intestacy. The Code, cb. 33, § 1500. The administrator thus occupies the place of trustee, for a special purpose, of such fund as he may obtain by the suit, holding it when recovered solely for the use of those who are entitled under the statute of distributions, free from the claims of creditors and legatees, and subject only to such charges and expenses, inclusive of counsel fees and his own commissions, as may have been reasonably incurred in prosecuting and securing the claim. Diminished by these deductions, the remaining duty is to pay over to the distributees. The cases cited in the brief of appellant's counsel, Love v. Love, 3 Ired. Eq., 104; Filhour v. Gibson, 4 Ired. Eq., 455; Outlaw v. Farmer, 71 N. C., 31, and McNeill v. Farmer, 83 N. C., 504, sustain his contention that a'court of equity will interpose and prevent a recovery upon a mere legal title, where the party has no trust to discharge or duty to perform except to deliver or pay over to the one whom he owes. Why should a fund be collected from a person to whom it is at once to be returned or paid after the plaintiff gets it? But the moieties due to the equitable owners of money must bear their equal parts of the charges and expenses rendered necessary in securing it, at least up to the period when the share of the said Alice Perry was released to the defendant and notice given the plaintiff. The residue belongs to the defendant, and there is no reason why it should be required to be paid’ when it must be returned. The judgment was therefore properly entered up against the defendant for the unpaid share of Alice, to which the defendant had succeeded as the arbitrators decide, not to be enforced, but to stand as a security for such sums as ought to be deducted for its share of said charges and expenses, and charged therewith. Meanwhile, it should not .be enforced until the proper sum with which it should be charged *311 is ascertained. Then execution should issue with direction that it be discharged by payment of the sum thus ascertained, and, when paid without execution, that a perpetual order of cessat executio be made. This secures the substantial rights of all parties in interest. We pretermit the expression of an opinion as to the charge for professional services, except that it should be of reasonable amount, for this inquiry is not before us in this appeal. There ivas no error in the refusal of the court to make any further order, after the judgment, for the. purpose of ascertaining what amount should be deducted before the defendant gets the benefit of the assignment, and meanwhile suspending the issue of process to enforce full payment, unless, which is not suggested, there should be danger of losing the debt. In such ease, the fund might be collected and paid into court and there held to await the results*of the proposed inquiry. The judgment is affirmed and to the end that further proceedings be had in accordance with this opinion, let it be certified. The appellant is entitled to the costs of the appeal. , . . Modified and affirmed.