Carson v. . Oates

64 N.C. 115

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Dick, J.

“ If a citizen of another country dies indebted to citizens of this country, and owns personal property heré, we appropriate it to the payment of his creditors in the order required by our law, and not that of his domicil.” Moye v. May, 8 Ire. Eq., 131. In order to make this appropriation, an administrator must be appointed in this State, and it is his duty to collect the assets, and dispose of them in the payment of debts in the order required by our law. A creditor of the intestate cannot collect the assets, and ap~ ply them in satisfaction of Ms debt to tbe prejudice of other creditors, but be must look to tbe administrator for payment. These principles are so well settled that they need neither argument nor tbe citation of authorities to sustain them.

In our case, if tbe shares of R. R. Stock, which are the subject matter of controversy, are effects in this State belonging to the estate of Brawley Oates deceased, then the administrator, R. M. Oates, must collect them by civil action, and apply the proceeds to the payment of debts in this State, and hand over the surplus, to be distributed according to the law of the domicil.

The present proceedings cannot be sustained, as the provisions of the Oode of Civil Procedure — Title xi, chap. 2, upon which they are founded — do not apply to this case. Those provisions were intended to supply the place of proceeding in Equity, where relief was given after a creditor had ascertained his debt by a judgment at law, and was unable to obtain satisfaction by process of law. The creditors of an intestate had no such remedy, for if an administrator failed to perform his duty in collecting assets and paying debts, the remedy of creditors, was an action on his administration bond. Such is still the remedy of the creditors of an intestate.

If they could by these “Supplemental Proceedings ” force a debtor of an intestate to satisfy their executions, they could render nugatory the laws regulating the administration of the estates of deceased persons. Such an interference with the rights and duties of administrators, was certainly not contemplated by the provisions above referred to. There is another objection to the present proceedings. They are supplemental to, and a continuation of the remedy sought in the original action, and an order for the delivery of property belonging to the judgment debtor held by a third person, must be made for the direct benefit of the plaintiff-la this case the order of delivery was made for the benefit of the defendant, and, of course, cannot be sustaine 1.

As Spratt sets up a distinct and specific claim to tire property in controversy, Ms title cannot be enquired into in these proceedings, but a' separate action against him must. be brought by the administrator, in which the rights of the claimants can be determined.

There is error in the ruling of the Court below, and the proceedings must be dismissed.

Per Curiam. Error.