Superior Court of North Carolina, 1805

McKinsie v. . Smith

Superior Court of North Carolina · Decided July 5, 1805 · LOCKE, J.,

3 N.C. 372

Counsel

Mr. Gaston argued for McKinsie that Smith was accountable to creditors for no more than the value of the property delivered over to a legatee. Haywood, e contra , argued that Rowan died before 1789, and (373) a delivery over before debts paid was no legal administration. If he had kept the property, he would have been answerable for the value and interest, or the profits, and delivering over the property illegally cannot surely exempt him from a burden which, but for that, he would have been subject to, nor take from the creditor his interest , which, but for that, he might have recovered. If the creditor can recover interest, then either Smith, the executor, or McKinsie, the legatee, must pay it; and surely the legatee who received the profits ought to pay it rather than the executor, who gets nothing for the pains he has taken but the trouble of this and other lawsuits.

Opinion of the Court

however, was of a contrary opinion, and said he ought not to be charged with interest, for that he was not bound to refund exceeding the value he had received; and independent of that, an executor delivering over the property was liable to creditors for the value, and no more.

NOTE. — Hostler v. Smith, ante, 305, defendant pleaded that the property was delivered over in 1786, to McKinsie and others; and LOCKE, J., decided that such delivery over did not amount to an administration; and the more so as Smith had notice of Hostler's debt.

NOTE. — See McKinsie v. Smith, 6 N.C. 92.

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