Hutchison v. . Roberts

Eisarson,..C. J.. It i» manifest by a perusal of tbe complaint,, that the primary and aM-im-po-rtent thing which- must be‘don© in the first instance, before the other matter in respect to th© trust for the femes plaintiffs can be dealt with, is to - have an account and settlement of the estate-of the testator;. for this purpose-all of the proper parties are joined,, and the only di'ff ficulty is,, that the: proceeding was commenced before the Judge of the Superior Court .in- term time, an-d not before the Judge of Probate ^ so the proceeding is e&ram non Judies. This is settled. Hunt v. Sneed, 64 N. C. 176. Sprinkle v. Hutchinson, 66 N. C. 450. To meet this difficulty the plaintiffs demand judgment, “'that as preliminary and ancillary to the relief sought..in lehalf of the femes plaintiffs■, au account may be taken of all the real an-d personal estate of the testator, which has, or ought to have, com© into the bands of-the defendants, as Executors, &cE Calling this demand for jwdgmeni, tbait- the defendants, a& Executors, account for all of the estate of the testator, “preliminary and ancillary to- the relief sought in behalf of the femes plaintiffs,” does not make it ancillary and a mere inciden*. A matter arising- collaterally in the progress of a case-properly constituted for an account and settlement of a trust fund, in behalf outlie three femes plaintiffs, when it is perfectly «vident that the first thing to be done is to have a settlement *227 oí the whole estate. See Sprinkle v. Hutchison, 66, N. C. 450. The relief sought in behalf of the femes plaintiffs cannot be had, until there is á trust fund ascertained and set apart for them. There has been no settlement of the estate by the two Executors, and no assent by them to the several legacies and devises. Treating this as a civil action, in the nature of an original bill in equity, for an account and settlement of a trust fund in behalf of the three femes plaintiffs, there is a misjoinder in respect to the other three plaintiffs, who are not embraced by the trust, and there is also a misjoinder in respect to the defendant Davis, who has no concern with the management of the trust fund. In short, the subject matter and the parties make a case for the Judge of Probate. The primary subject matter and the parties do not make a ' case to be commenced in the Superior Court. A change of jurisdiction cannot be effected by an averment, that the judgment demanded in behalf of all of the plaintiffs against both of the defendants, is “preliminary and ancillary” to the judgment sought in behalf of three of the plaintiffs against one of the defendants. See Froelich v. Express Company, at this Term. No error. Per Curiam. Judgment affirmed.