Elliott v. . Newby

9 N.C. 22

• Court: Supreme Court of North Carolina
• Decided: June 5, 1822
• Status: Published

Opinion

Henderson, Judge.

Every objection which has been successfully urged against a Court of Law taking cognizance of claims for legacies and distributive shares, applies with equal force against this case; for it is substantially an action at law, at the instance of the absent or absconding debtor, against: the administrator for a distributive share of the intestate’s estate. The Court is as incompetent to take an account of assets, to order payment upon terms, to have all persons interested in the fund before the Court, for the administrator’s safety, as if the distributee had himself brought the action, and yet all these things are as necessary in the one case as the other. It may seem strange to say, that Courts of Law are incompetent to enforce legal rights, and it seems to me, that since the statute of distribution, and the act of Assembly taking the surplus from executors, and directing them to pay the legacies, both distributive, shares and legacies, are claims or rights at law.

But the decisions are all the other way, and it is too late to question them; indeed the powers of a Court of Equity are much better adapted to the subject, than those of a Court of Law, and I feel no disposition to disturb the question.

I think, therefore, that this claim is not subject to condemnation, and that the garnishee should be discharged.

Tayjgor, Chief-Justice, and Harr, Judge, concurred.