Hutchison v. Bates

Court of Appeals of North Carolina

Hutchison v. Bates

17 S.C.L. 111

DecidedDecember 15, 1828

StatusPublished

This text of 17 S.C.L. 111 (Hutchison v. Bates) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hutchison v. Bates, 17 S.C.L. 111 (N.C. Ct. App. 1828).

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Opinion

Colcock, J.

delivered the opinion of the Court.

There is no ground on which the decree of the ordinary can be impeached, except that which relates to the allowance of the costs on the judgment, obtained after the death of the testator. The creditors now before us stood on the same footing at the death of the testator : they were all bond creditors at that time ; and to that period the executor must refer, in marshalling the assets according to the directions of the act of 1789. If the [113]*113estate were solvent, the plaintiff would be intitled to his costs ; . „ . , , , j but in the case of an insolvent estate, where an executor is sued, and pleads outstanding debts of a superior, or equal grade, in which case the creditor comes in pro rata, to allow the creditor, who sues, to add his costs to his demand, would be to permit him to diminish the fund out of which the other creditors were to be paid, without any fault on their part; for neither they nor the executor could prevent the creditor from suing. As to the bonds, which weré not due, they are as much debts of the testator as if they had been due. A bond payable at a future day is a debt; it is debitum in presentí, though solvendum in futuro. It is ordered that the decree of the Ordinary be so reformed as to disallow the claim for costs.

Decree reformed.

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Colcock, J.

delivered the opinion of the Court.

There is no ground on which the decree of the ordinary can be impeached, except that which relates to the allowance of the costs on the judgment, obtained after the death of the testator. The creditors now before us stood on the same footing at the death of the testator : they were all bond creditors at that time ; and to that period the executor must refer, in marshalling the assets according to the directions of the act of 1789. If the [113]*113estate were solvent, the plaintiff would be intitled to his costs ; . „ . , , , j but in the case of an insolvent estate, where an executor is sued, and pleads outstanding debts of a superior, or equal grade, in which case the creditor comes in pro rata, to allow the creditor, who sues, to add his costs to his demand, would be to permit him to diminish the fund out of which the other creditors were to be paid, without any fault on their part; for neither they nor the executor could prevent the creditor from suing. As to the bonds, which weré not due, they are as much debts of the testator as if they had been due. A bond payable at a future day is a debt; it is debitum in presentí, though solvendum in futuro. It is ordered that the decree of the Ordinary be so reformed as to disallow the claim for costs.

Decree reformed.

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Bluebook (online)

17 S.C.L. 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutchison-v-bates-ncctapp-1828.