Halifax County NcArchives Court.....Richard H. Smith, Ex'r, Martha J. Camp V. 1873
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Connie Ardrey n/a November 14, 2011, 6:41 pm

Source: N C Reports
Written: 1873

Martha Jane Camp v. Richard H. Smith, Ex'r, &c.

An unmarried daughter, to whom was bequeathed $3,000 in money or bonds, and in 
the event of her death without lawful issue, her legacy was to be divided, 
&c., is entitled to the immediate payment of the whole of such legacy, its 
ultimate devolution being a question between her and the contingent remainder 
men, if they are such.

An executor, who surrenders upon the request of the surety, a bond for which 
the principal and such surety are bound, and takes in lieu thereof the 
individual bond of such surety unsecured, makes himself personally responsible 
for the payment of the bond, or such portion thereof as remains unpaid.

Civil Action, brought by plaintiff, daughter and one of the heirs of Humphrey 
S. Camp, deceased, to obtain a construction of a clause in her father's will 
and for payment of a legacy, tried by Watts, J., at the Special (December) 
Term, 1871, of the Superior Court of Halifax County.

The testator left to each of his three daughters $3,000 in the following 
bequest:

"I do will and bequeath to my three daughters, Martha Jane, Mariana C. and 
Lucy Camp each, three thousand dollars in money or bonds, and in the event of 
the death of either one or any of my said daughters, without lawful issue, it 
is my will that her or their legacy shall be equally divided and heired by the 
survivor of my four (sic) daughters now single."

The plaintiff had never married, nor had issue. Her sisters, above named were 
married and had issue.

His Honor in the Court below, upon the hearing found as facts:

1. That the testator did not leave cash sufficient to pay the legacies, but 
left bonds amounting to enough for that purpose.

2. That the defendant had satisfied the other legacies mentioned in the clause 
above set out, and had retained a bond for nearly the sum of $3,000, principal 
money, payable to his testator by one Spier Pittman, principal, and Joseph J. 
Powell, surety, with the purpose of satisfying said legacy; and to that end, 
caused the same, after the death of the testator, to be renewed, payable to 
himself as executor in the precise sum of $3,000.

3. That in 1861, Pittman, the principal, was insolvent, but the surety Powell, 
was a man of large estate, and unembarrassed.

4. That in 1861, the defendant upon the request of Powell, surrendered to him, 
Powell, the bond of Pittman, and took his, Powell's note, without any security 
for the amount, holding the same for the like purpose of providing for 
plaintiff's legacy. Of this exchange or substitution of notes the plaintiff 
had no notice.

5. That the plaintiff has paid the interest on the note to plaintiff up to 
May, 1863. And that of money received from the estate of Powell, he had paid 
plaintiff the further sum of $600, in March, 1870, and that he has now from 
the same source, $174.27.

6. That Powell is dead, his estate in the hands of a receiver and supposed to 
be insolvent.

Upon this state of facts, the plaintiff insisted, that the defendant is liable 
for the full amount of the legacy with interest, and that she is entitled to 
the immediate payment of the same.

On the other hand, the defendant insisted that he had done nothing of which 
the plaintiff could, with reason complain, and that upon the facts as found, 
he is liable only for such portion of said legacy as he may succeed in 
collecting from the estate of Powell. And further that the plaintiff is 
entitled only to call for the accrued interest in so far as the defendant has 
collected the same, and not for the principal of the fund.

His Honor adjudged:

1. That the plaintiff could recover only the accrued interest on the legacy 
bequeathed to her; and that the defendant is entitled to the payment made by 
him, to be applied to extinguish the accrued interest.

2. That the defendant in giving up the bond of Pittman to the surety, Powell, 
taking the note of Powell unsecured therefor, changed the credit at his own 
risk, and thereby became liable for the whole debt, although it is not yet 
ascertained whether the estate of Powell is insolvent or not. The Court 
directed an account.

From this judgment both plaintiff and defendant appealed.

Peebles & Peebles, for plaintiff
Batchelor & Son and Conigland, for defendant

NC Supreme Court Justice Rodman, J. - So much of the judgment below as 
declares that plaintiff is not entitled to the immediate payment of what is 
unpaid of the principal and interest of the legacy to her is reserved. And so 
much as declares that the defendant is personally liable for such portion of 
the note Powell as he has not paid to the plaintiff is affirmed. Is is referred 
to the clerk of this Court to state and report and account of what is due upon 
the legacy. A judgment may be drawn in conformity to this opinion. (see court 
case for judge's full findings)

The plaintiff will recover her costs in both cases
Per Curiam
Judgment accordingly

Additional Comments:
In the NC Supreme Court January Term 1873

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