The following is the state of the facts, as disclosed by the pleadings and proofs:
In March, 1817, Leonard Purdy and Sarah Smith, being about to intermarry, entered into a marriage contract, wherein it was stipulated, "that the said Purdy shall have during his natural life and fully possess and enjoy, without any molestation, all the negro property belonging now to the said Sarah Smith, together with the use of the land, etc.:" — "provided always, and it is the true intent and meaning of this covenant, that if the said Sarah should die without any child or children, during her marriage with the said Purdy, then, and in that case, she is, and by these presents, at liberty and vested with full and ample powers to give and bequeath the said negroes to whomsoever she pleases." (443) This is as much of the covenant, as it is necessary to set out. The marriage took place, and Mrs. Purdy died in the year 1818, without having any child by Leonard Purdy. Before her intermarriage with Mr. Purdy, Mrs. Purdy had been the wife of Etheldred Smith, upon whose estate she had administered, and the intestate, Richard Crump, whose representative the plaintiff is, had been one of her sureties to her administration *Page 348 bond. The defendants are her children and grandchildren, by her first husband. Mrs. Purdy left behind her a testamentary paper, signed and sealed by her, and properly witnessed; in which she "gives and bequeaths" to her daughter, Rebecca Gary, then the wife of the defendant, Roderick B. Gary, and, after her death, to her children, a part of these negroes; and to the defendants, the two Smiths, others of them. Then follows this clause. "The whole of said negroes, hereby bequeathed, are subject to the life-estate of my husband, Leonard Purdy, agreeable to a marriage contract entered into between me and my said husband, and dated 29 March, 1817. I do hereby nominate, ordain and appoint my friend, William B. Lockhart, my executor, of this my last will and testament." This paper was duly proven in the County Court of Northampton, at the March term, 1820. Mrs. Purdy died... day of ........in 1818, leaving her husband alive.
During the life of Mrs. Purdy, an action was brought on her administration bond, against her and her husband, and the sureties thereto, by the defendant Roderick B. Gary, as guardian of his own children and of the defendants, the Smiths, to recover from them their distribution shares of their father's estate. A recovery was made in the year 1826, and the intestate, Richard Crump, paid his ratable proportion thereof, Purdy being insolvent — and the bill is filed to subject the negroes, in the hands of the defendants, to the payment of that portion. Before this recovery was made, an action had been brought by the defendant Gary to recover from William B. Lockhart, as executor of Mrs. Purdy, a debt which was due him from Mrs. Purdy; (444) a judgment had been obtained by him, and, under the execution, he had purchased the negroes in question, and held them as his until 1838, when the defendants having filed their bill against him as their guardian, this Court decreed that, as he was their guardian, he held the slaves in that fiduciary character; and decreed he should surrender them to the defendants. More than seven years elapsed, from the time the plaintiff's intestate paid the money, under the judgment recovered against him, as the surety of Mrs. Purdy on her administration bond, until the filing of this bill — and the defendants pray the benefit of the Act of 1715, passed for the protection of the estates of deceased debtors. Among other grounds of defense, the defendants rely upon the fact, that an action had been brought by the plaintiff's intestate, as one of the sureties of Mrs. Purdy, upon her administration bond, against Roderick B. Gary, upon his guarantee to them, to induce them to become such sureties — that *Page 349 other suits had been brought by the other sureties against him, the said Gary, for the same cause, all of which had been compromised, and that the sum paid by Gary to the several plaintiffs, was received by them, under said compromise, included the demand now set up, and was in full of all demands against the estate of Mrs. Purdy. It further appears in the case that the present plaintiff, after the payment of the money to him by Gary, brought an action against William B. Lockhart, as the executor of Mrs. Purdy, and recovered against him the amount of his claim; the jury having found by their verdict that said Lockhart had no assets, the said negroes never had been in his possession, but were at the time of the plea and judgment in the possession of Gary, claiming them as his own property. The defendants aver that the said judgment was obtained by fraud, and in derogation of their rights. They further contend that, by the testamentary paper, called the will of Mrs. Purdy, the defendant Lockhart was not an executor thereof, and the judgment obtained against him was null and void, and did not compromise any of their (445) rights. Upon examining the evidence in this case, the Court is satisfied, that, in the compromise of the suits brought by the sureties of Mrs. Purdy against Mr. Gary as a guarantee, nothing more was settled, than their claims against him; that nothing more was intended by the parties to be included, and that in fact it extended no farther. It did not embrace the claim, now urged by the plaintiff, and he is at liberty, notwithstanding said compromise, to urge his present suit. They are further of opinion that it is not necessary to decide upon the question, whether the recovery made by the plaintiff against William B. Lockhart, as executor of Mrs. Purdy, was obtained by fraud or not, as they are satisfied, for the reasons hereinafter stated, that the said recovery was a mere nullity. The important question presented by the case is, have now the defendants the right to plead the statute of 1715, in bar of the plaintiff's claim? William B. Lockhart, the executor, as he is called, of the will of Mrs. Purdy, is a party defendant and has not pleaded it. Can the other defendants, who are really the parties interested, do so? This involves the question, in what character is William B. Lockhart to be considered, is he the executor, strictly speaking, of Mrs. Purdy's will, or is he *Page 350 merely an appointee to carry into execution the trust, which the law annexes to the appointment of Mrs. Purdy? It is deemed unnecessary, at this time, to enter into an elaborate history of the power of femecoverts to make wills, with or without the consent of their husbands. The paper produced in this case as the will of Mrs. Purdy is an execution of a power secured to her, when she was discovert, and in every respect capable, not only of binding herself, but of binding such persons as contracted with her. She, in pursuance of the power thus secured to her, executed, before two witnesses, the instrument she calls her will. Such a testamentary paper, before it can be available, either in law or (446) equity, must be regularly proved before the proper tribunal. In a court of equity, such probate alone will not suffice, for the court of probate, in such cases, do not feel themselves called on to examine, whether the appointment is authorized by the power. There are other special circumstances connected with a testament which are not trusted to a court of probate, and which the grant of probate does not determine, but leaves open to the temporal courts. Upon the probate, therefore, before the ordinary, a court of equity does not act, but requires that the instrument shall be proved, before them, to be such as was required by the power. The witnesses, therefore, must be called to prove that the instrument, when thefeme covert has power to appoint, was her act and is duly executed according to the requirements of the power.
In this case, the will of Mrs. Purdy has been admitted to probate before the appointed tribunal, and in this Court is admitted by the answers to be duly executed, under the power given her by the marriage contract, for only under it, as such, can they claim the negroes at all. The Court, is therefore, of the opinion that the will of Mrs. Purdy has been properly proved, and is a sufficient execution of the power secured to her. In her will she refers to the marriage contract, as governing the interests she conveys, and that is satisfactory evidence, that she considered herself as executing the power. What then is the character and power of William B. Lockhart under that paper? Is he in the sense, in which the law understands the term, an executor? We think not, we consider him here as but an appointee in trust to convey the intentions of the appointer, as either expressed by her or implied in law. By this paper, Lockhart, though called an executor, is not strictly and properly such, even in the view of a court of equity, because Mrs. Purdy had no separate estate in the negroes, which she could bequeath. When a feme covert has such estate, she may make a will and appoint an executor, and such executor *Page 351 shall be her general representative. Hulme v. Tenant, 1 Brow. C. C., 16, Fettiplace v. Gorges, 1 Ves. Jr., 46. Peacockv. Monk, 2 Ves. Sr., 191. (447)
But, though it be true, that, in this case, Mrs. Purdy could not constitute Lockhart an executor, properly so called, it does not follow that his nomination is necessarily unmeaning, and to be rejected altogether. The paper is not a testament of personal estate, but it is an appointment under the power in Mrs. Purdy. It is an appointment of the whole property, over which she had a power, and she has no other property. Then the inquiry is, what is the meaning of such an appointment of Lockhart as executor, in such an instrument? It is apparent from reading the paper that Mrs. Purdy thought she was disposing of her separate property, and in that view she appointed an executor. But it turns out, the instrument can not operate in that way, but is only an appointment, and it is the necessary construction of it, that, as the property would have vested in Lockhart, by virtue of his appointment as executor, so he must be intended to take to the same extent, and for the same purposes, as appointee in the instrument. What else could she mean by nominating an executor, but that he should take the estate in that way, in trust for creditors in the first instance, and then for the several appointees mentioned in the instrument? It is said, there was no necessity for an executor, as the creditors have the same remedy against the children, as appointees. But there was the same necessity, as in ordinary cases of executors to wills. One is, that creditors may obtain satisfaction from a single source, instead of going against all the legatees, and also that the interest of the creditors and legatees may be protected by a competent person. Here the ultimate appointees were a married woman, children and unborn grandchildren, and the appointment of some person, as executor, to act quasi in that character, was convenient and useful. Under these considerations, we hold this appointment to be in the first instance to Lockhart, to pay the debts of Mrs. Purdy, and then for the use of the other appointees, as if he were regularly an executor, and they were regularly legatees. Equity holds that where an individual has a general power of appointment over a fund, and actually makes an appointment according to his power, the property appointed (448) shall form a part of his assets in equity, for he payments of his debts, in preference to all claims upon him, by volunteers, either as legatees or appointees. Sugden on Powers, 2 Vol., p. 30, and the authorities there cited. Lockhart then being an appointee in trust, the creditors of Mrs. *Page 352 Purdy could no more reach the property in his hands by an action at law, than if the appointment had been direct to the defendants. They could reach the assets only through the aid of a court of equity. The judgment at law, obtained by the complainant against Lockhart, was therefore void, and of no effect, and could not, as we are disposed to think, break, of itself, the running of the statute of 1715. Lockhart is a necessary party to this bill. To him is entrusted the right and the duty to take care of the property of the appointer, and, when called into a court of justice, to defend it. It is somewhat doubtful, whether the ultimate appointees are necessary parties. Lash v. Hauser, 37 N.C. 493. Castleton v.Fanshaw, Prec., Ch. 100. Ex parte, Dundney, 15 Ves., 498. But if they are necessary, it is because they are interested in the fund, and may have a right to see that the trustee or appointee makes all the defense he is by law bound to make, or because they are in possession of the fund. It is well settled, both in England and this country, that the executor may or may not at his pleasure, plead the statute of limitations. It is indeed more prudent, that he should do so, but he can not be compelled to plead it by a legatee. He is the pars principalis orlegitimus contradictor, who is bound and authorized to act for all persons entitled to interest under the will as legatees. Redmondv. Collins, 15 N.C. 441. Williams v. Maitland, 36 N.C. 92. And the legatees are bound by his act: "he alone brings a bill for an equitable money demand of the testator. He is the only party necessary by a creditor for an account of the assets, neither the particular nor the residuary legatees being required, though their interest may be affected." Redmond v. Collins, supra. In this case, Lockhart, the appointee in trust, and a defendant, admits in his (449) answer that he has never paid to the plaintiff the money claimed by him, and he does not plead the statute of limitations, and we hold that the defendants, who are the appointees, can have no right so to do. If the negroes had been in the possession of Lockhart, there is no question but he might have paid the debt due to the plaintiff, although barred by the statute, without exposing himself to the liability of paying over to the ulterior appointees. Williams v. Maitland, supra.
PER CURIAM. DECREED FOR THE PLAINTIFF.
Cited: Jones v. Blanton, 41 N.C. 120; Rogers v. Hinton, 62 N.C. 106;S. c., 63 N.C. 84; Halliburton v. Carson, 100 N.C. 109. *Page 353 (450)