Place v. . Place

ScheNck, J. Tbe court below held “That tbe form of tbe issues submitted to tbe jury in tbe other action is not conclusive, but that tbe court should look to tbe real question litigated and decided as shown by tbe pleadings, evidence and charge of tbe court.” In tbis conclusion of bis Honor we concur. Tbe court further held “That tbe claim of Tempie G. Place in said action was not a creditor’s claim against tbe estate of J. E. Place, but *678 was a claim against the fund representing the proceeds of tbe sale of the bouse and lot held by entireties, to wbicb she claimed the right of survivorship still attached, and that she, and not the estate, must bear any loss resulting from the failure of the bank in which said fund was deposited.” In this conclusion we think his Honor erred. When J. E. Place died with the proceeds of the sale of land held by the entireties in his possession, these proceeds passed to his estate and were held by his estate as trustee for the survivor, namely, his wife, Tempie Gr. Place; and when his wife qualified as his administratrix these proceeds came into her hands as trustee for the rightful beneficiary thereof. These proceeds furnished a basis for a creditor’s claim, and for an action in assumpsit, in favor of the beneficiary thereof, namely, Tempie Gr. Place, against the trustee, namely, Tempie Gr. Place, administratrix of the estate of J. E. Place, deceased. We conclude from the facts in this proceeding that the proceeding in which Judge Daniels rendered judgment was in the nature of an action of indebitatus assumpsit for a claim against the estate of J. E. Place, deceased, and not, as held by his Honor, “a claim against the fund representing the proceeds of the sale of the house and lot held by entireties.” It will he noted that the issue submitted by Judge Daniels was not whether the plaintiff was the owner of and entitled to a claim against any particular fund or proceeds of any particular sale, but was one of simple indebtedness, being in the following language: “In what sum, if any, is the estate of J. E. Place indebted to Tempie Gr. Place?” The answer of $2,750 to this issue would seem to support judgment for a debt, rather than for a claim against a fund representing the proceeds of a sale. Likewise the submission of the second issue as to the sufficiency of the personal property to satisfy the obligations of the estate indicates that the court was acting upon the theory that the action was one for debt and creditor’s claim, as the question of such sufficiency would not have arisen if the purpose had been to impress a claim upon a particular fund. “If the cestui que trust is unable to trace the trust fund ... or if he elects not to do so, he may proceed against the trustee personally.” Perry on Trusts and Trustees, par. 843, pp. 1438-1439. In an interesting discussion of the various counts in action of assumpsit, we find the following: “The count of indebitatus assumpsit, the most comprehensive one of all, in which it was alleged that the defendant was indebted to the plaintiff in a certain sum of money; as for real property sold or used and occupied, or for personal property sold; or for personal services rendered; or for money loaned or paid and expended to defendant’s use; or for money paid to and received by defendant to plaintiff's use; all of which was incurred in some way at his special instance and request; and that being so indebted, the defendant promised in consideration thereof to pay the plaintiff the said *679 money. 1 Obit. PL, 341; Saund. PL & Ev., 139. Of tbe indebitatus counts, those relating to transactions based on tbe payment or receipt of money were called tbe money counts; as money lent to defendant; money paid and expended for bis use; and money had and received'by defendant to plaintiff’s use.” 5 C. J., 1381, footnote 10(a). Tbe court below beld “That tbe said Tempie G. Place is estopped by tbe verdict and judgment in tbe said former action in wbicb it is declared tbat tbe personal assets of tbe estate are sufficient to pay its obligations and tbe costs of administration. . . In thus bolding we tbink bis Honor erred. In tbe judgment rendered in 1931 a definite indebtedness is declared and sucb judgment is final as to tbe amount. Tbe further adjudication therein, based upon tbe second issue submitted, tbat tbe personal property was sufficient to satisfy tbe obligations of tbe estate was interlocutory. Williams v. McFadyen, 145 N. C., 156. This latter adjudication was of necessity interlocutory, since tbe sufficiency of personal property to pay debts does not become determinative of tbe question as to whether land may be sold to make assets until tbe time for paying tbe obligations of tbe estate arrives. “Where tbe personal property, although originally sufficient for tbe payment of debts, has become insufficient after tbe death of tbe testator, by reason of depreciation or losses for wbicb neither tbe personal representatives nor creditors are responsible, tbe real estate may be sold.” 24 O. J., 553. We conclude tbat tbe petitioner is entitled to have tbe land of tbe estate of J. E. Place, deceased, sold to make assets to pay tbe balance due on her judgment, namely, $1,937.50. This action is remanded to tbe Superior Court of Durham County, tbat judgment may be entered in accordance with this opinion. Eeversed.