31 S.E. 346 | N.C. | 1898
W. P. Jenkins died in July, 1886, having first made a last will and testament, which was duly admitted to probate. Said Jenkins, at the time of his death, was the owner of something over 800 acres of land, and by his will he devised 200 acres "lying in the angle formed by the St. John and Woodland's road, also including the dwelling-house and out-buildings which I now occupy, to my beloved wife and daughter, Stella." "This gift shall be theirs jointly and Stella's after the death of her mother (my wife). Should Stella die without issue, this said property shall be divided among her half-brothers and sisters or their heirs." But the testator does not dispose of any other part of his lands by said will. This being so, he died intestate as to all other lands except the 200 acres thus willed to his wife and his daughter Stella. The said W. P. Jenkins left other children and grandchildren surviving him besides Stella, to wit, P. C. Jenkins, W. W. Jenkins, M. F. Raby, wife of C. W. Raby, and two grandchildren, to wit, H. C. Tyler and Pulaski Tyler, sons of a deceased daughter. And it seems to be conceded that he did not leave sufficient personal property to pay his debts, and that is was and is necessary to sell lands to pay his (11) debts.
After his death the children had a parol partition of the land, and within less than two years from the death of the testator, W. P. Jenkins, the plaintiff bought growing timber standing on the land of Raby and wife and W. W. Jenkins, according to their parol partition. (It is admitted that these purchases were within two years from the death of the ancestor.) The plaintiff also bought timber growing on the lands willed to the widow and Stella. But this transaction seems to have taken place more than two years after the death of the testator. The said Stella married the defendant Renfrow and soon thereafter died without having issue; and since the commencement of this action W. W. Jenkins has died, and neither his personal representatives nor his heirs at law have been made parties to this action.
The executors named in the will of W. P. Jenkins, failing to pay the debts of the estate of their testator, and failing to take steps to convert real estate into assets for that purpose, the creditors in 1893 commenced proceedings against the executors and the heirs at law of the testator to sell lands for assets to pay debts. The complaint, as originally filed, only asked a sale of the 200 acres devised to the widow and the daughter Stella. But afterwards, and on the day of sale, by consent of the parties, the pleadings were amended so as to include all the lands of which the testator died seized, and the decree theretofore had was amended so as to include all his lands. Under this amended order they were all sold and *38 (12) purchased by the defendant Liverman at the price of $1,575, although there is evidence tending to show that the lands were worth $3,700 or $4,000.
It is provided in this agreement to amend the pleadings and order of sale, so as to include all the lands, that if any of the parties thereto shall buy the lands, any of their heirs shall have seven months and a half to redeem their parts. In other words, if Liverman bought, the heirs should have seven and a half months to redeem, and Liverman was one of the signers to this paper, and it appears that the heirs are still in possession of the lands.
This is a case of singular complications, and we have had much trouble in arriving at a satisfactory solution of the matters involved. We are asked by the same attorneys who brought the creditors' suit and obtained the order under which the lands were sold to set aside this sale for irregularity and fraud. The testator was the owner of a large landed estate embracing more than 800 acres. Of this large estate he willed 200 acres to his wife and daughter Stella jointly, with a contingent remainder over, upon Stella's death without issue, to her half brothers and sisters. This contingency has happened and the half brothers and sisters of Stella have become the owners of this remainder not as her heirs, as was contended by plaintiff, but under the will of W. P. Jenkins. This 200 acres, specifically devised, was not subject to the payment of the debts of the testator until the 600 and odd acres, not devised, were first appropriated. And it would seem from the amount of debts proved and the value put upon the land, that the undevised land would have been amply sufficient to have paid all the debts and proper costs of administration. But singular as it may seem, the complaint as originally drawn only asked for the sale of the two hundred acres willed to the widow and the (13) daughter Stella, and the original order was drawn in this way. It may be, if this order had not been changed by the agreement of the parties and the defendant Liverman that they would have lost their rights, and the widow, who seems to have been the special object of the testator's bounty, would be without a home. But owing to the fact that the complaint was changed, and the order of sale changed so as to include all the land on the very day the land was sold, and this sale made and confirmed on the same day it was made, although there were femes covert and infant children interested; and this under an agreement that if the defendant Liverman became the purchaser, the parties to this agreement should have 7 months and 15 days to redeem; and when it appears that said defendant purchased the land for less than one-half its value; that these heirs are still in possession and insisting on their rights under this sale; which causes us to look at the whole proceeding with suspicion. It does not seem to us that the widow, who seems to be the stepmother *39 of the other children, except Stella, whom seems to have been a half sister and a minor at the time this proceeding was had, has been fairly dealt with. The consent paper seems to have been more in the nature of a mortgage to raise money to pay the debts of the estate than to procure a bona fide sale of the property, in which was included the 200 acres willed to the widow and Stella, and which they had no right to sell unless the unwilled lands proved unsufficient to discharge the debts.
The parol partition set up by the plaintiff cannot be sustained where there is a feme covert and two infant children at the time it is alleged it took place, interested in the land, who were incapable of making any such partition. We do not say that we would sustain it (14) without this, but with this we certainly cannot.
Our opinion then is, that this sale should be set aside, that the personal representative and heirs at law of W. W. Jenkins should be made parties defendant, that an order should then be made in this proceeding (all the parties being before the Court) to first sell all the lands not willed to the widow and Stella, and, if they bring enough to pay the debts mentioned in the petition to sell land, that the other lands so willed to the widow and Stella should not be sold. If the unwilled lands should not bring enough to pay the debts, as above stated, and it becomes necessary to resort to the lands so willed, they should be sold subject to the life estate of the widow and that her life estate should only be sold in the event that this and the rest and residue of the lands do not bring enough to pay the debts; that out of the proceeds of said sale the defendant Liverman be first paid the money he has paid on the sale theretofore had; that the residue, if any after this, be divided among the heirs at law, but the plaintiff be paid out of the share of Raby and wife the amount he paid them for timber, with interest thereon; and the residue of their part, if any, be paid to Mrs. Raby; that the same thing be done as to the heirs of W. W. Jenkins, and the defendant Liverman; that as Mrs. Jenkins and Stella sold to plaintiff more than two years after the death of the testator and as plaintiff denies that he had any knowledge, at the time he purchased of them, of any outstanding debts (and this seems not to be disputed by defendants) it would seem that this sale will stand.
The case will be proceeded with as directed in this opinion. There is
Error.
Cited: S. c.,
(15)