Brooks v. . Headen

Smith, C. J.; after stating the case. There can be no question of the correctness of the ruling, that the record did not show any debt judicially ascertained and declared against the intes *452 tate personally. The judgment fixes the liability of the trustee, Aaron I). Headen, and the possession by his executors of assets sufficient to discharge it, and if it cannot be satisfied from them, it may become personally their own debt by a proper proceeding for the devastavit. Until this is done, the judgment is against the defendants in their representative capacity, and to be satisfied out of the effects of the testator. Original letters testamentary having issugd prior to July 1st, 1869, the character of the judgment is determined by the law as it existed before the act of April 6th, 1869, went into operation. This is settled by the case of Williams v. Green, 80 N. C., 76. If it were governed by the present law, the question of assets would be left open and the judgment would only ascertain the debt, “unless the personal representatives by pleading expressly admit assets.” Bat. Rev., ch. 45, § 95. If the judgment against the executors had been made a personal judgment against the intestate executor, Andrew Headen, during his life-time, the present suit could be maintained, upon the insolvency of his personal estate, and the fraudulently alienated real estate, pursued, if the administratrix refused to apply for license to sell, and subjected to the payment of the intestate’s debts. But the plaintiff does not appear in the attitude of a creditor of the intestate, not having taken the steps to make his judgment such, and he cannot proceed unless he docs. We do not mean to intimate that the plaintiff may not in the same action obtain a personal judgment and then pursue his remedy against the intestate’s estate, personal and real, in their proper order, for its satisfaction ; and if such was the object of the present action, it is not presented in any of the framed issues, and it is the fault of the plaintiff that none others were before the jury, and he cannot complain. Kidder v. McIlhenny, 81 N. C., 123; Curtis v. Cash, 84 N. C., 41; Bryant v. Fisher, 85 N. C., 69; Alexander v. Robinson, Ibid, 275; Bank v. Harris, 84 N. C., 206. *453 We are called upon to review the errors assigned, and so appearing in the transcript; and, confined to the exercise of this appellate jurisdiction, we find no error in the ruling that no debt is shown to exist against the intestate at the commencement of the action, and unless there was such debt the other matters of inquiry are wholly immaterial, and the jury were properly discharged from passing upon issues that only involved them. There is no error and the judgment must be affirmed. No error. Affirmed.