McFarland v. . McKay

74 N.C. 258

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

Rea.de, J.

The plaintiff claims a legacy. The defendant den u s:

1. Because the Superior Court in term has not original jurisdiction. The court has such jurisdiction where the legacy has been assented to; or when it is sought to declare and enforce a trust.

2. The second cause for demurrer is, that the plaintiff has no right to call this defendant to account. It is not stated why this right does not exist. It was however stated at the bar, that it is because the defendant is not the executor of the will; but is only the administrator of the deceased executor, and has not assumed the trust of the legacy. This cannot avail the defendant, inasmuch as it is not. denied that the funds are in his hands.

3. The third cause of demurrer is, that the disposition of the legacy was discretionary with the executor and not with the defendant.

' The only discretion was to deal out the money to the plaintiff af she might need it, or to invest it in land for her benefit, neither of which has been done.

There is no error. The cause will be remanded to the end that the defendant may answer. The attention of the plaintiff is called to the imperfect statement of her case in the complaint. There is no allegation that the defendant is administrator of the deceased executor, or that any fund has come to his hands. If the plaintiff have leave she can amend.

Pee Cubiam. Judgment affirmed.