The petitioner is the widow and administratrix of J. E. Place, deceased, who died 19 February, 1929, and left surviving him collateral heirs, who are the respondents in this proceeding.
In a special proceeding instituted 1 June, 1929, and transferred to the civil issue docket and tried before Judge Daniels, at September Term, 1931, judgment was awarded the petitioner for the sum of $2,750 to be paid by the administratrix, and it was therein further adjudged that there was no necessity to sell real estate to make assets to pay this sum. This judgment was based upon the petitioner's right of survivorship in the proceeds of a sale of certain real estate of which she and her husband were seized by the entireties. At the time of his death these proceeds were deposited in a bank to the credit of J. E. Place.
This proceeding was instituted by the petitioner on 7 July, 1932, as the administratrix of J. E. Place, against his heirs at law to have real estate sold to make assets to satisfy the judgment obtained in 1931. The respondents reply that the claim of the petitioner was never against the estate of J. E. Place, but only upon the fund which represented the sale price of the land held by him and his wife by entirety.
From the judgment of Judge Daniels, notice of appeal to the Supreme Court was given by the respondents, which prevented the administratrix from paying the judgment from the assets then in her hands; and before the respondents had abandoned said appeal the assets in the hands of the administratrix had diminished in value, through bank failures and otherwise, to the extent that they were insufficient to pay said judgment, there being only $812.50 available for that purpose, which amount was paid on said judgment, thereby reducing the amount due thereon to $1,937.50.
From the judgment of the court that she take nothing by her action, the petitioner appealed to the Supreme Court. The court below held "That the form of the issues submitted to the jury in the other action is not conclusive, but that the court should look to the real question litigated and decided as shown by the pleadings, evidence and charge of the court." In this conclusion of his Honor we concur.
The court further held "That the claim of Tempie G. Place in said action was not a creditor's claim against the estate of J. E. Place, but *Page 678 was a claim against the fund representing the proceeds of the sale of the house and lot held by entireties, to which she claimed the right of survivorship still attached, and that she, and not the estate, must bear any loss resulting from the failure of the bank in which said fund was deposited." In this conclusion we think his Honor erred. When J. E. Place died with the proceeds of the sale of land held by the entireties in his possession, these proceeds passed to his estate and were held by his estate as trustee for the survivor, namely, his wife, Tempie G. Place; and when his wife qualified as his administratrix these proceeds came into her hands as trustee for the rightful beneficiary thereof. These proceeds furnished a basis for a creditor's claim, and for an action in assumpsit, in favor of the beneficiary thereof, namely, Tempie G. Place, against the trustee, namely, Tempie G. Place, administratrix of the estate of J. E. Place, deceased. We conclude from the facts in this proceeding that the proceeding in which Judge Daniels rendered judgment was in the nature of an action ofindebitatus assumpsit for a claim against the estate of J. E. Place, deceased, and not, as held by his Honor, "a claim against the fund representing the proceeds of the sale of the house and lot held by entireties." It will be noted that the issue submitted by Judge Daniels was not whether the plaintiff was the owner of and entitled to a claim against any particular fund or proceeds of any particular sale, but was one of simple indebtedness, being in the following language: "In what sum, if any, is the estate of J. E. Place indebted to Tempie G. Place?" The answer of $2,750 to this issue would seem to support judgment for a debt, rather than for a claim against a fund representing the proceeds of a sale. Likewise the submission of the second issue as to the sufficiency of the personal property to satisfy the obligations of the estate indicates that the court was acting upon the theory that the action was one for debt and creditor's claim, as the question of such sufficiency would not have arisen if the purpose had been to impress a claim upon a particular fund.
"If the cestui que trust is unable to trace the trust fund . . . or ifhe elects not to do so, he may proceed against the trustee personally." Perry on Trusts and Trustees, par. 843, pp. 1438-1439.
In an interesting discussion of the various counts in action ofassumpsit, we find the following: "The count of indebitatus assumpsit, the most comprehensive one of all, in which it was alleged that the defendant was indebted to the plaintiff in a certain sum of money; as for realproperty sold or used and occupied, or for personal property sold; or for personal services rendered; or for money loaned or paid and expended to defendant's use; or for money paid to and received by defendant toplaintiff's use; all of which was incurred in some way at his special instance and request; and that being so indebted, the defendant promised in consideration thereof to pay the plaintiff the said *Page 679 money. 1 Chit. Pl., 341; Saund. Pl. Ev., 139. Of the indebitatus counts, those relating to transactions based on the payment or receipt of money were called the money counts; as money lent to defendant; money paid and expended for his use; and money had and received by defendant toplaintiff's use." 5 C.J., 1381, footnote 10(a).
The court below held "That the said Tempie G. Place is estopped by the verdict and judgment in the said former action in which it is declared that the personal assets of the estate are sufficient to pay its obligations and the costs of administration. . . ." In thus holding we think his Honor erred. In the judgment rendered in 1931 a definite indebtedness is declared and such judgment is final as to the amount. The further adjudication therein, based upon the second issue submitted, that the personal property was sufficient to satisfy the obligations of the estate was interlocutory.Williams v. McFadyen, 145 N.C. 156. This latter adjudication was of necessity interlocutory, since the sufficiency of personal property to pay debts does not become determinative of the question as to whether land may be sold to make assets until the time for paying the obligations of the estate arrives.
"Where the personal property, although originally sufficient for the payment of debts, has become insufficient after the death of the testator, by reason of depreciation or losses for which neither the personal representatives nor creditors are responsible, the real estate may be sold." 24 C.J., 553.
We conclude that the petitioner is entitled to have the land of the estate of J. E. Place, deceased, sold to make assets to pay the balance due on her judgment, namely, $1,937.50. This action is remanded to the Superior Court of Durham County, that judgment may be entered in accordance with this opinion.
Reversed.