8 N.C. 497

Ryden v. Jones.

Decided June 5, 1821

Supreme Court of North Carolina · decided 1821-06-05

From Craven. This was a petition, filed originally in 1816, in the County Court of Craven, by James Ryden, administrator of Elizabeth Ryden, and Mary Savanoe, shewing1 that Michael Hyman the younger, being seised and possessed of a large real and personal property, in 1793 duly made and published his last will, whereby, after some specific legacies, he gave all the residue of his estate to his four sisters, Margaret wife of Peter Vendrick, Syduey wife of Edward Bowen, Mary…

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Decided 1821-06-05

How this case has been cited

Cited by 3 later decisions — most recently March 1915

3 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Tavxor, Chief-Justice.

¶1 It has now become a settled rule of equity, too firmly established to be shaken, that a trustee shall gain no benefit to himself by any act done by him in his fiduciary character ; but that all his acts shall be for the benefit of the cestui que trust. It is not necessary in the view I take of the case, to enquire whether an executor comes within the rule as established in England, though in the case of Barden v. Barden, 18 *505 Ves. 170, it was decided that an executor cannot purchase his testator’s effects ; because our local laws have materially changed the rights and duties of an executor. The act of 1723, cli. 15, explained and modified by se-yeral subsequent acts, restrains the executors from selling the unperishable estate without an order of Court; and as the law now stands, the County Courts are to judge of the necessity of a sale either to make distribution or to pay debts. It lias not intrusted the executor with the power of selling at his own discretion $ nor is it any justification to him, acting without an order of Court, that the sale was just and necessary. This .however does not change the principle on which the law considers void a purchase made by a trustee, for it would still be so if the sale was authorised by an oi%ir of Court. The general tendency of our acts in this respect is rather to limit than enlarge the powers of an executor, and shews that the doctrine relied on by the petitioners applies a fortiori to them.

¶2 The length of time cannot have an effect on the petitioner’s rights under the circumstances of the case. It is an open unexecuted trust, and it is not pretended that the share of the price for which Frank was sold, has ever been paid to Elizabeth Ryden, or her representatives.

Haza, and Hendersow, Judges, concurred.

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Case posture

Posture: THIS was a petition, filed originally in 1816, in the County Court of CRAVEN, by James Ryden, administrator of Elizabeth Ryden and Mary Savanoe, showing that Michael Hyman, the younger, being seized and possessed of a large real and personal property, in 1793 duly made and published his last will, whereby, after some specific legacies, he gave all the residue of his estate to his four sisters, Margaret, wife of Peter Vendrick; Sydney, wife of Edward Bowen; Mary Savanoe, the petitioner, and Elizabeth Ryden, the intestate of the petitioner, James. Of this will he appointed James Hyman executor, who qualified and took into possession the personal property of his testator. The petitioners stated that, among other personal property not specifically bequeathed, was a negro slave, named Frank, which Hyman, the executor, pretended to claim as his own property, whereas it belonged to the estate of his testator, and the residuary legatees were entitled to distribution of the said negro and of the profits of his labor from the time of Michael Hyman's death; that James Hyman died without making any settlement of his accounts as executor, but leaving a last will, whereof he appointed Jones, the defendant, executor, who qualified and took into his possession the assets of Michael Hyman left unadministered by James Hyman, and also the assets of James Hyman; that Jones also took into his possession and retained and employed the negro slave, Frank, and received large sums as the profits of his labor; that James Hyman, in his lifetime, (498) and Jones, since his decease, had satisfied the claims of Peter Vendrick and Edward Bowen, but refused to make any satisfaction to the petitioners for their shares. The petition prayed that Jones might set forth an account of the assets of Michael Hyman that came to his hands and to the hands of his testator, James; that he might answer especially whether Frank was not part of the estate of Michael Hyman; that Frank might be sold or valued and the petitioners receive their respective shares of his value; and that a full account of the distribution or application of the estate of Michael Hyman by James might be shown. The answer of Jones stated that he had no knowledge which would enable him to say what assets of Michael Hyman came to the hands of James, but referred to the returns of James Hyman made to Craven Court; that he, this defendant, never had any assets of Michael Hyman in his hands, to his knowledge or belief; that his testator, James, had paid and satisfied Lewis Savanoe, husband of the petitioner, Mary Savanoe, whatever legacy, right, interest or demand she had, and had the release of said Lewis and Mary to produce; that he was ignorant whether James Hyman ever settled with Elizabeth Ryden and her husband, Benjamin, or either of them, for any claim they might have under the will of Michael Hyman, or not; that, as to the slave, Frank, he had understood and believed that he was part of the estate of Michael Hyman, sold by James Hyman, as his executor, and purchased fairly at a public sale of the effects of the said Michael, on credit, by Philip Turner, to the use of James Hyman, who had charged himself with the purchase money and accounted with all the persons named as interested therein, save Elizabeth Ryden; that James Hyman, by will, gave Frank to Fanny Hukins, and that Frank came to the hands of the defendant as James Hyman's property; and that, as (499) executor, he disposed of him and was ready to account with any person lawfully entitled to call on him. On the several issues submitted to the jury they found the facts to be as follows: That the negro, Frank, was sold at public auction by James Hyman, as executor, and purchased by Philip Turner for said executor, in March, 1794; that the sale was fair and necessary, and that the slave brought his full value; that all the residuary legatees of Michael Hyman were present at the sale, except Savanoe and his wife, and that all the persons entitled to distribution in the negro assented to the sale. They further found that Elizabeth Ryden died two or three months after the sale; that James Ryden obtained letters of administration on her estate in September, 1816; that she was covert at the time of the sale and at her decease; that Benjamin Ryden, her husband, died in 1797; that letters of administration on his estate were granted to James Hyman in September, 1797, and that Benjamin and Elizabeth Ryden left three children — James, the petitioner; Gatsey and Elizabeth Ryden, the last of whom was at that time eleven years old; that James Hyman made a settlement of his accounts, as executor of Michael Hyman, in March, 1796; that on 6 January, 1794, he returned an account of sales, which was signed by the then sheriff of the county. On this finding, it was considered by Norwood, J. , who presided below, that the petitioners take nothing by their petition, but that the same be dismissed; whereupon the petitioners appealed.

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