Edwards v. . Love

Smith, C. J. (after stating the facts). The covenant entered into by the defendants, as imposing a legal obligation, is personal to them, for they cannot by their own act, make it that of their testator. But the contract is made by them as trustees, in the discharge of a fiduciary duty created under the will, and assumed in their acceptance of office. The action would lie against them as individuals, and a recovery be had, while at the same time, the plaintiff has a right to have so much of the trust estate as is in their hands and applicable to the plaintiff’s claim, used in *369 its discharge. The proceeding is against them personally, the term “ executors” only designating the capacity in which they have covenanted, and it is intended to enforce an obligation,, entered into under the authority, and pursuant to the provisions of the will, and for the benefit of the testator’s estate. Had the demand of what is truly due, been voluntarily met, the voucher for the payment would have been received as a proper disbursement, just as would be sums paid counsel, for aid in the management of the trust, or costs incurred in the bona fide prosecution of an action, which proves unsuccessful, in the interests of the estate, or in an unavailing resistance to an action against it. As the fruits would benefit and enlarge the trust estate, so must moneys used in its defence, or in the assertion and enforcement of its supposed just demands, go to its impairment and diminution. If, then, the executors might have voluntarily paid the claim, why, when they refuse, may not the plaintiff coerce them to make payment out of the assets in their hands, produced by the plaintiff’s rendered service? The suit has a two-fold purpose: 1st, to establish the demand under the covenant; and, 2nd, to enforce its discharge out of the trust fund. What may have formerly required an exercise of both legal and equitable jurisdiction, to be sought in distinct forums, may now be secured in a single proceeding, in one tribunal. Bank v. Harris, 84 N. C., 206 ; Mebane v. Clayton, 86 N. C., 571. “ The primary jurisdiction of the Court,” remarks RueeiN, C. J., referring to a court of equity, in Mitchell v. Roberts, 2 Dev. Eq., 478, “is in personam, and although our statutes allow executions in equity, the nature of the decree is not altered, but only that process is substituted, at the election of the party, for that of contempt. The decree is against the defendant personally, regarding him, (the executor in this case), as a trustee, by reason of the fund in his hands, applicable to the plaintiff’s satisfaction.” *370 Again, when expenses are incurred by an executor, in carrying out the directions contained in the will, they stand very much on the footing of those incurred by the testator himscdf, and like the expenses of administering the trust, have a prior claim upon the estate, and must be paid before legacies cau be. This plain principle has been recognized and acted on in cases before this Court. Thus, in Hardy v. Leary, 8 Ired. Eq., 94, the testator directed that certain income should be used by his executor, in the support and education of his children. After his death, his widow married a second time, and this husband, the intestate of the plaintiff, sent to school and supported the children so provided for in the will, at his own expense, receiving payment therefor from the defendant, the testator’s executor. It was held that to the extent of the income, devoted to this object, the plaintiff was entitled to be reimbursed the moneys thus reasonably expended by the intestate. The same general principle is recognized in Morrow v. Mor row, Busb. Eq., 148 ; and in Little v. Bennett, 5 Jones Eq., 156. While thus, the defendants, with trust funds in hand applicable to the plaintiff’s debt, (and there is no suggestion in the case to the contrary), may be compelled to appropriate them in its discharge, they are liable to an action ®n the contract as personal, irrespective of the possession of assets, and may be compelled to pay out of their individual estate. But this remedy does not take- away the equitable right to proceed against them as trustees in possession of trust funds which are also liable.. The concluding portion of the judgment, declaring the debt a charge upon the estate, imports, as we understand its terms, a mandate to the defendants t,o make the payment out of the trust fund, according to the contract. There is no error, and the judgment must be affirmed. No error. Affirmed.