York v. . McCall

Hoke, J. By express enactment in this State (Revisal, sec. 144), -a petition may be entered before the clerk of the Superior Court for recovery of a legacy and prosecuted as in other cases of special proceedings. Unless,'however, the executor has assented to the legacy or the admission of assets otherwise is made to appear, a recovery can be had only on proof that assets have come into the hands of the executor applicable to the claim or that they should have been acquired and held in the proper performance of the duties incident to the position. Croswell on Executors and Administrators, p. 360; Pritchard on Wills, sec. 783. According to the terms of the will annexed as an exhibit and made a part of the complaint, this is what is called a demonstrative legacy, payable primarily out of the “rents of the home place,” and then under certain contingencies payable by the executrix as part owner of a place .in South Carolina known as the “Neck Place,” and, in case of both sources failing, and *279 under principles of law applicable, out of tbe general assets of tbe estate. 1 Underbill, sec. 406, p. 555; 18 A. and E. (2d Ed.), p. 722. From a perusal of pleadings in the cause it appears that James B. McCall, tbe testator, died in 1894,' baying made bis last will and testament and appointing bis daughter, Mary, tbe present defendant, as executrix. That tbe testator at tbe time of bis death owned tbe “borne place,” which was then under a lease to this daughter. He also bad a claim on tbe “Neck Place,” a tract of land in South Carolina, and which has since been acquired by this daughter under tbe terms of tbe will, and also a lot of personal property.' By tbe terms of tbe will the executor is charged with tbe duty of paying plaintiff’s legacy from funds designated and in band, and'with tbe proper administration of assets available or which should have been, in. tbe proper performance of her duties, including tbe rents of tbe “home place,” certainly to tbe extent of those rents that were due and payable under tbe lease. There is nothing in tbe answer which raises any issue in bar of an accounting by defendant, and it is only pleas of that character which prevent such a course. Oldham v. Reiger, 145 N. C., 254; Jones v. Wooten, 137 N. C., 421; Royster v. Wright, 118 N. C., 152; Carr v. Askew, 94 N. C., 194. It is true, she avers in general terms that no assets have come to band and that none could have been acquired by her, and, further, that tbe general personal property left by tbe testator was all consumed by tbe family and used in their support prior to defendant’s qualifying; but on tbe facts presented and admitted in tbe pleadings, these averments only raise questions of fact affecting tbe course and result of the account, and may not be considered as pleas in bar. Yelverton v. Coley, 101 N. C., 248; Bevins v. Goodrich, 98 N. C., 217; Carr v. Askew, supra; Grant v. Hughes, 96 N. C., 186. While bolding that there are no issues of fact in bar of an account raised by tbe pleadings, tbe judgment as entered by tbe clerk cannot be sustained. As we have endeavored to show, in an action of this character a judgment for tbe legacy may only be entered on showing assets in band applicable to tbe *280 claim, or that such assets should have beeu acquired in the proper performance of defendant’s duties. And that portion of the judgment appointing a receiver must also be set aside. A clerk of the Superior Court is not allowed to appoint a receiver to take charge of property unless the right is given in express terms or is necessarily incident to powers which are so conferred. Possibly, under section 35 of The Code, .a clerk might make such an appointment when it was necessary to the proper preservation of- the estate, but as a general rule the appointment of a receiver must be made by a judge. Revisal, sec. 846 et seq.; Parks v. Sprinkle, 64 N. C., 637. And in any event, no order affecting the interest 'of an owner of property should be made unless such owner is a party and has been given opportunity to be heard. In suits of this character it has heretofore been usual to make all persons interested in the distribution of the estate parties, to the end that the judgment should conclude them' and the better afford protection to the executor. Pritchard on Wills, sec. 782. But in any event, before any orders or judgments are made in the present case affecting the rights and interests of the ultimate devisees and owners of this “home place,” such owners certainly should be made parties of record. The court had the right in its discretion to remand the cause to the clerk for further proceedings. Revisal, sec. 614. And for the reasons and ■to the extent stated, we think his Honor’s order setting aside the judgment of the clerk should be affirmed. But on the pleadings as they now appear, we are of opinion that judgment should be entered that the defendant account. That if the lease has expired, and it is proposed to ask for orders making further appropriation of the rents of the “home place” to satisfaction of plaintiff’s claim, the owners of that property must be made parties. This will be certified, that further proceedings be had in accordance with this opinion, and the costs will be paid equally by parties plaintiff and defendant. Modified.