After the decision between these parties at August Term, 1850,33 N.C. 307, the case came on against in the Superior Court, and, on the trial, the plaintiff again offered as witnesses the two sons of his intestate, who were before deemed incompetent. They released to the plaintiff their distributive shares of their father's personal estate, and the plaintiff released to them respectively all claim for the costs of their suit. The defendant then gave evidence as before, that certain creditors of the intestate, after getting judgments in suits against the plaintiff as administrator, in which his plea of plure administravit (437) was found for him, issued writs of scire facias against the heirs, to have execution against the estate, to which the heirs had not as yet pleaded, though still pending; and further, that lands in Tennessee descended to the heirs, of which the value was unknown; and also that the intestate had sold in his lifetime certain lands in this State, reserving to himself and his heirs the mines and minerals therein, and that after the expiration of two years from the granting of administration to the plaintiff, all the heirs had sold and conveyed that right to the purchasers of the land, and that the two sons, tendered as witnesses, received for their interest $10 each, and that it was not known that there were any minerals in the land, or that the interest was of any value. Thereupon the witnesses executed a further release to the plaintiff of their right to make up a collateral issue as to personal assets in the suits against them by the creditors as to the sum of $10 each, with the interest thereon from the date of their sales, and then they were admitted and gave material testimony, and the plaintiff had a verdict and judgment, from which the defendant appealed. *Page 299
The Court is of opinion that, in respect of the realty in this State, the case is not varied by the new facts from what it was before. These two persons have precluded themselves from making up an issue with the administrator, but they cannot control the defendant and the other heirs in that respect, and it seems clear that any one of them could tender the issue, and if found against the administrator, the creditor would have execution against him for the sum found in his hands, which would necessarily operate to the exoneration pro tanto of all the real estate descended. That one of the heirs could make up the issue is apparent from the consideration that most frequently the personal representative is also an heir and devisee, and no particular provision is made for that case, and yet the constant course has been to proceed in such cases at law, and without resorting to the court of equity. The witnesses were liable for the want of personal estate to the (438) creditors for the value of the estate reserved by their father in the lands sold by him, which, prima facie at least, is to be taken as not less than the price got for it, and at all events is something.
From that liability they may be relieved by some of the heirs compelling the creditors to resort to the personal fund, and these witnesses still have an indirect interest in the personalty, notwithstanding their release to the plaintiff. It is said, however, that they have discharged themselves from liability to the creditors by divesting themselves of the money received by them for the land. But assuming that to be the value, this position is not correct, as the money has not been paid to a creditor, and does not belong to any one or all of them, and the deposit with the clerk or any other person for the use of the creditors could not be pleaded by these persons in bar to the scire facias, but they remain just as much liable now as they would be if they had thrown the money away. As that is so, it is useless to consider how far their competency might be affected by the possible liability at law in Tennessee of the lands in that State, or the personal liability in equity of the witnesses in this State, or in Tennessee in respect of those lands.
PER CURIAM. Venire de novo.
(439)