The causes of demurrer assigned by the defendants will be considered separately.
1. That there is a defect of parties defendant in the omission of Spencer Hooper and those who purchased his interest, the said Hooper being the sole legatee of A. H. Hooper.
Observations. We conceive that Spencer Hooper ought to be a party, because he was the obligor in the bond to Alexander Wiley in trust, etc., for $600, and the payment of that bond is one of the objects of this action. The cause assigned does not appear to be true, in fact, as Alexander Hooper is stated to have died intestate. This cause of demurrer is sustained.
2. That there is a defect of parties defendant in the omission of J. G. Griffith, administrator of Susan P. Hooper.
Observations. We think Griffith is a necessary and proper party to the taking of the accounts which will be necessary in this action. This cause of demurrer is sustained.
3. That several causes of action have been improperly united; one being in an action F. A. Wiley as executor of A. Wiley; and the second being an action against F. A. Wiley as guardian of A. H. Hooper and Susan P. Hooper; and the third being an action against F. A. Wiley as trustee of a bond under the will of A. Wiley.
Observations. We are of opinion that the several accounts which are demanded are all so united that they cannot be conveniently separated into several actions. If any inconvenience shall be found to arise from the union it will be in the power of the judge to remedy it. This cause of demurrer is overruled. *Page 239
4. That H. F. Brandon, administrator of A. H. Hooper, is improperly made a defendant in this action.
Observation. The same reasons that made the administrator (325) of Susan a proper party make the administrator of Alexander Hooper a proper party, and it is immaterial whether he is a plaintiff or defendant. If no judgment shall be obtained against him he can recover his costs. This cause of demurrer is overruled.
5. That this court cannot have jurisdiction of an action to recover the interest of a legatee, but that jurisdiction of the same belongs to the probate court.
Observations. One object of the action is to enforce an express trust created by contract, and also some constructive trusts arising ex delicto. The other relief prayed is ancillary or incidental to this, or so connected with it as not to be conveniently separable. The probate court has no jurisdiction to enforce a trust created by contract and not arising out of the official duty of an executor or administrator, etc., or a constructive trust arising out of fraud or the like. Whenever it is necessary to have a trust of either of these kinds declared, before the account of an executor, administrator or guardian can be properly taken, the plaintiff can always go before a judge of the Superior Court, and the judge having jurisdiction over one main ground of relief is not obliged to dismiss the case with a mere declaration of the trusts, but may go on and give full relief. This cause of demurrer is overruled. The case is remanded to be proceeded in according to this opinion.
As the demurrer assigned causes partly good and partly bad, neither party will recover costs in this Court.
PER CURIAM. Judgment accordingly.
Cited: Cain v. Nicholson, 77 N.C. 412; Devereux v. Devereux, 81 N.C. 18;Gulley v. Macy, ib., 364; Wahab v. Smith, 82 N.C. 233; Sparger v.Moore, 117 N.C. 453; Sumner v. Staton, 151 N.C. 202.
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