Guilford County NcArchives Court.....Peter Adams, Samuel Mitchell & Irvin Donnell, Ex'rs Of Patrick McGiboney V. 1840
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Connie Ardrey n/a December 30, 2011, 9:18 pm

Source: N C Reports
Written: 1840

Samuel Mitchell & Irvin Donnell, Executors of Patrick McGiboney v. Peter Adams

The Court of Probate may accept the renunciation of an executor at any time 
before he has intermeddled with the effects of his testator, even after he has 
proved the will. So of the executor of an executor as to the first will.

Where A. died leaving a will, appointing B. his executor, and B., after 
proving the will, died leaving C. and D. his executors, who accepted the 
trusts of the latter will, and qualified as executors thereof, but without at 
the time renouncing as to the first will, but they never intermeddled with the 
effects of the first testator: held that the Court of Probate had the power, 
years afterwards, to accept their renunciation as to the first will, and grant 
administration cum testamente annexo.

Held further, that these acts, being within the power and jurisdiction of the 
Court of Probate, could not be incidentally or collaterally impeached in any 
other Court, but could only be attacked upon as application to the Court of 
Probate to revoke the letters of administration and recall the executors.

This was an action on the case, tried before his honor Judge Nash, at the Fall 
Term, 1840, of Guilford Superior Court. The plaintiffs declared as executors 
of Patrick McGiboney, to recover a sum of money received by the defendant to 
the use of the plaintiffs as executors. The defendant, among other things, 
pleaded specially "that the plaintiffs have renounced as executors of Patrick 
McGiboney, and that administration on his estate has been granted to one David 
McGiboney, to whom the defendant has tendered the money, but he had refused to 
receive it." To the several pleas there was a general replication, and on the 
trial the plaintiffs, in submission to the opinion of the Court, suffered a 
nonsuit, and appealed to this Court. The following is a statement of the case:

Patrick McGiboney died, leaving a last will and testament, which was duly 
admitted to probate, and John Cunningham, the executor, duly qualified as 
such. John Cunningham died, leaving a last will and testament, and the 
plaintiffs, the executors therein named, proved the same and were duly 
qualified, and duly administered the effects of this testator. At the time the 
plaintiffs so qualified as the executors of John Cunningham, it was not known 
to them or any other person that there was any estate of Patrick McGiboney 
remaining unadministered by his executor, John Cunningham. 

Some years afterwards, it was discovered that there was property to be 
administered. Whereupon the plaintiffs, without ever intermeddling with said 
property, went into Court and renounced the Court, with their knowledge and 
consent, appointed David McGiboney administrator de bonis non with the will 
annexed of the said Patrick. The testator, Patrick McGiboney, had been a 
soldier in the Revolution, and, under the acts of Congress, became entitled to 
a considerable sum of money; and to collect it, the administrator appointed 
the defendant his agent, who had accordingly done so; and this action was 
brought to recover it from him, it being at the time the action was brought 
still in his hands. A recovery was claimed for the plaintiffs upon the ground 
that they were the legal representatives of Patrick McGiboney, their 
renunciation being of no effect and the letters of administration granted to 
David McGiboney consequently void. The Court ruled that an executor of an 
executor may qualify and take upon himself the executorship of the latter will 
and refuse to execute the will of the first testator, and that the County 
Court of Guilford had jurisdiction to accept the renunciation of the 
plaintiffs, and to appoint an administrator de bonis non with the will 
annexed, upon the estate of Patrick McGiboney; and that, as they had so done, 
and such administration was still in existence, not revoked nor reversed, the 
plaintiffs could not recover in this action.

J. T. Morehead for the plaintiff
Graham and Bryan for the defendants

NC Supreme Court Chief Justice Ruffin

Per Curiam
Judgment affirmed

(see court case for judge's full findings0

Additional Comments:
In the NC Supreme Court December Term 1840

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