From Rutherford.
1. Executors and Administrators. An account cannot be decreed of the personal estate of a deceased person without making the executor or administrator a party to the petition.
2. Executors de son tort are not answerable to the distributees on a petition filed by them as against a rightful executor; for if a decree should be made for petitioners and they receive the property under it, they thereby become themselves executors de son tort, and a court of equity will never become accessory to such and act, or so far disregard the rights of creditors.
RUFFIN, J.
The question in this case is, whether an account can be decreed of the personal estate of a deceased person without making the executor or administrator a party to the bill, and we think it cannot. Humphreys v. Humphreys, 3 P. Wms., 348, is a direct authority to this point. It is true that here the defendants are called executors in the petition; but the petition also charges that Judith Goode died intestate. This, therefore, is an attempt to make executors de son tort answerable to distributees, which we are satisfied, from the reasons given in the case just cited, ought not to be done. There is another consideration that has great weight with us, which is, that if a decree should be made for the petitioners, and they receive the property under it, they would themselves thereby become executors de son tort, which implies a wrongful interference with the property of the intestate. A court of equity can never be accessory to such an act, or so far disregard the rights of creditors. The decree of the Superior Court must be affirmed.
Cited: Spruill v. Johnston, 30 N.C. 399; Ward v. Huggins, 37 N.C. 136.
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