The bill alleges that James Coleman died in 1811, leaving a will, which was admitted to probate in the county of Montgomery, and that Elizabeth Coleman, his widow, who is one of the defendants, being therein appointed executrix, duly qualified as such; that in the said will a bequest is made to Eliza Coleman, a daughter of the testator, of a negro woman Edy, one horse, bridle and saddle, and one bed and furniture; that Eliza died intestate before she received any of the property; that Edy had a child, Ellick, both of whom are in the possession of the defendant Daniel Stoker; that the plaintiffs Richmond P. Coleman, James Coleman, Mary McDaniel, and Nancy Roseman, and the defendants Elizabeth Coleman and Sally, the wife of the defendant Daniel Stoker, are the next of kin of the said Eliza; that James Coleman, for a valuable consideration, has sold his interest in the estate of the said Eliza to Mathias Moore, one of the plaintiffs, and Nancy (275) Roseman has sold her interest to Daniel A. G. Palmer, one of the plaintiffs; that Mathias Moore, at the November session of the county court of Stanly, was appointed the administrator of the said Eliza; that, *Page 194 as administrator, he applied to the defendants for the property bequeathed to his intestate, for an account of the hires, and profits, and for any residuary portion of the estate of the said James Coleman to which his intestate was entitled; but the defendants refused to deliver the property, or to render any account, insisting that the defendant Elizabeth had some years before been appointed the administratrix of the said Eliza in the county of Montgomery, and had, as administratrix, taken possession of all her estate, and had delivered the slaves, Edy and Ellick, to the said Stoker, one of the defendants, who now sets up claim to them under an alleged gift, made to him by the defendant Elizabeth.
The bill charges that the plaintiffs are not able to ascertain whether the said Elizabeth was appointed administratrix in Montgomery, as alleged, or not, because the records of that county have been destroyed by fire; that if she was not so appointed, the plaintiff Moore, as administrator, is entitled to the property and to an account, to enable him to settle with her next of kin. If she was so appointed then the plaintiffs. being entitled to distributive shares, are entitled to an account; that the defendant Stoker, at the time he received the negroes, well knew that the said Elizabeth had no property, having conveyed all she owned to the said Stoker; that they have no remedy upon her administration bond, if she ever gave one, as it was destroyed with the records of Montgomery County, and no proof can be made of its execution or who were her sureties; and that the defendant Stoker is a man of but little property, besides the negroes, and as he sets up an absolute claim to (276) them, the plaintiffs fear that he will abscond, and carry them to parts unknown.
The prayer is for an account, and that a writ of sequestration issue, commanding the sheriff to take the negroes into his possession and hold them subject to the order of the court, unless the defendants give bond for the forthcoming of the negroes.
The defendant Elizabeth died before she answered. Stoker and wife deny that James Coleman left a will, and insist that he died intestate, alleging that the paper-writing executed by him was inoperative as a will for the want of capacity, and had never been admitted to probate. They allege that, at April Term, 1827, of the county court of Montgomery, Elizabeth Coleman was appointed the administratrix of Eliza Coleman, and insist that the appointment of the plaintiff Moore is void. They insist that the legacy to Eliza, if James Coleman left a will, never vested, as she died under age and without children. The answer then alleges that Elizabeth had in her possession the negro Edy, from 1842, when she sold Edy and her child, Ellick, to the defendant; and that during all that time Elizabeth claimed Edy, and Ellick, after his birth, to be her own; believed her to be her own, and exercised acts of ownership *Page 195 and exclusive dominion over her; that in 1842 Elizabeth became old and infirm, and conveyed Edy and her son, Ellick to the defendant for a valuable consideration, towit, $250, and an agreement on the part of Stoker to maintain her. He denies any intention of removing the slaves, and alleges that he has property sufficient to discharge all his liabilities.
The defendant Stoker also alleges that in 1838 the plaintiffs Mary McDaniel and Richmond P. Coleman, for valuable consideration, conveyed to him all their interest in the estate of James Coleman, which conveyance, he alleges, includes Edy and Ellick; and that in November, 1845, he purchased the interests of the plaintiffs (277) James Coleman and Mary Roseman in the estate of James Coleman, Sr., and that the plaintiff Palmer, for a valuable consideration, agreed to dismiss the bill and enter a retraxit.
At the filing of the bill the plaintiffs obtained an order directing the sheriff of Stanly County to take the slaves Edy and Ellick into his possession, and hold them subject to the order of the court, unless the defendants entered into bond in the penal sum of $1,200 for the forthcoming of the slaves. The defendant Stoker gave the bond accordingly.
Upon the coming in of the answer the defendants moved to discharge the sequestrations, and "it appearing to the court that the defendants had sufficient property to meet their liabilities, and that there was no intention to remove the property, it is ordered and decreed that the writ of sequestration be discharged." From which order the plaintiffs were allowed to appeal. The question is whether the motion to discharge the sequestration ought to have been allowed. We think it ought not, and that there is error in the interlocutory order appealed from.
The plaintiffs claim to be entitled to an account, and to a portion of the property, as a part of the next of kin of Eliza Coleman, alleging that it was bequeathed to her by James Coleman; that Elizabeth Coleman, the executrix, committed a breach of trust, by transferring the property to the defendant Stoker; and that they fear the property will be removed, because the defendants have but little property, and Stoker denies their right, and sets up an absolute title in himself; and that they will lose the fruits of their recovery if they should succeed in establishing their claim, unless the property is secured. (278)
The plaintiffs, by this will, certainly make out a prima facie case, and if the fund be in any danger, they have a right, by the practice of this Court, to have it secured until the hearing, by the appointment *Page 196 of a receiver, or by a sequestration, as was done in this case, which is, in effect, the appointment of a receiver, but in a manner less apt to injure the defendants, by allowing the property to be retained, provided a bond be given for its forthcoming.
We apprehend his Honor fell into the error by not adverting to the distinction between a case like the present and the ordinary case of an injunction to stay execution upon a judgment at law.
In the latter case, upon the coming in of the answer, if the equity of the bill be denied fully and fairly, the defendant is entitled to a dissolution of the injunction; for, the right at law being admitted, a court of equity will not interfere with the legal remedy, except upon "equity confessed," or, at least, "not denied by the answer."
In a case like that under consideration, the right of the plaintiffs to have the property secured pending the litigation does not depend upon the "equity confessed by the answer"; and the court, having secured the fund, will keep it secured until the rights of the parties are adjudicated, unless the application was improvidently granted (which will sometimes be the case, because, by our mode of proceeding, the application is an exparte one), or unless upon the coming in of the answer it appears, taking the whole together, that the claim of the plaintiffs is unfounded, or that the security which has been obtained was unnecessary.
Taking the bill and answer together, it does not appear that the claim of the plaintiffs is unfounded.
It is admitted that the property once belonged to James Coleman. If he bequeathed the property to Eliza Coleman, of whom the plaintiffs (279) are a part of the next of kin, their rights are clear, and the fact that Elizabeth Coleman administered upon the estate of Eliza, as is alleged by the defendants, does not affect their rights, but merely the mode of asserting them; indeed, this fact raises a strong presumption that Eliza was entitled to some property; otherwise, why take administration upon her estate? And it is difficult to conceive how the title of James Coleman was ever divested. Elizabeth Coleman must have retained the possession, either as executrix rightfully or in her own wrong, or as one entitled to a distributive share; and her long possession could not divest the title while the estate was unrepresented; so that there is an obvious contradiction and want of fairness in the defendants' allegation of her long possession, and great hardihood in the attempt to set up title in her, "because she claimed Edy to be her own, believed her to be her own, and exercised acts of ownership and dominion over her," which circumstances may induce the belief that the defendant Stoker has been temped [tempted] by the destruction of the records of the county of Montgomery to set up an exclusive claim to property which in truth *Page 197 belongs to him in right of his wife and the plaintiffs, as tenants in common of the equitable estate.
Nor does it appear that the application to have the property secured pending the litigation was unnecessary.
It is true the defendant Stoker swears "that he has property sufficient to discharge all his liabilities," but it does not appear whether he includes among his liabilities that of being called upon to account for this property. It is also true that he denies any intention of removing the property. That may or may not be so. It is certain that he sets up an exclusive claim to it, and is not able to account satisfactorily for the manner in which Elizabeth Coleman, under whom he claims, acquired title, otherwise than by a flagrant breach of trust, which he must have known. The interlocutory order discharging the sequestration must be reversed, and the plaintiffs have costs in this Court and (280) the court below.
This Court does not intend to intimate an opinion that the bill as now framed is sufficient to enable the plaintiff to obtain relief. We do not enter into that consideration, as the bill, if defective, is open to amendment, and the case is now before us upon an interlocutory order.
PER CURIAM. Reversed with costs.
Cited: Griffin v. Carter, post, 416; Lloyd v. Heath, 45 N.C. 41;Kendall v. Stoker, id., 207; Wilson v. Mace, 55 N.C. 8; Swindall v.Bradley, 56 N.C. 356; Parker v. Grammer, 62 N.C. 30.