190 S.E. 756 | N.C. | 1937
Exceptions to report of executors, heard under C. S., 124, and on appeal under C. S., 125, resulting in judgment against the executors individually and in their representative capacity.
The questions presented turn upon the following facts:
1. On 6 August, 1929, Alice J. Bost, of Cabarrus County, died testate, naming the Citizens Bank and Trust Company and Sam Suber her lawful executors, and directing in her will that at least $4,500 should be spent on her burial, gravestone, improvement of family plot, etc., in accordance with directions given in her lifetime. She left an estate valued at the time at approximately $16,000. (See Lipe v. Trust Co.,
2. The executors duly qualified 9 August, 1929, filed will for probate, and immediately entered upon the administration of said estate.
3. In Item 8 of the will, the testatrix leaves her household and kitchen furniture, worth about $200, to Mrs. Artie Suber and her children. This was turned over to the legatees soon after the death of the testatrix.
4. The executors rented a house belonging to the testatrix to Mrs. C. H. Lipe for $22.50 per month, her husband agreeing to secure payment of said rent by any interest which he had in the estate. C. H. Lipe is a nephew of the testatrix and was given a legacy of $3,000 under her will. No cash rent has been collected since 1 June, 1930, and the renting was done without order of court. Hardy v. Turnage,
5. On 5 August, 1932, C. H. Lipe brought suit against the estate for services rendered the testatrix during her lifetime and recovered judgment in the sum of $3,875, agreeing with his counsel, however, that they should have 40 per cent of whatever amount was collected on said judgment. *442 Lipe v. Trust Co., supra. The first notice the executors had of Lipe's claim was when he filed suit; and the first notice they had of his agreement with counsel was received 2 August, 1935.
6. The executors have realized only $10,211.62 from properties belonging to the estate, and the estate now appears to be insolvent.
7. In the final report of the executors, the C. H. Lipe judgment is credited with payment of $1,240 on 30 July, 1935, "by house rent."
In the court below, the executors were held personally liable:
First, for $1,298, excessive monument and grave expenses made without order of court;
Second, $200 value of household and kitchen furniture;
Third, 40 per cent of credit on Lipe judgment, plus certain expenses advanced by counsel.
The executors, individually and in their representative capacity, appeal, assigning errors.
This is another case in which executors who are required to act in the searchlight of prevision have been judged in the noonday of hindsight. The latter is usually the brighter light, affording a clearer vision. "Hindsight is usually better than foresight." Ingle v. Cassady,
First, in respect of the burial expenses, purchase of gravestone, improvement of family plot, etc., it should be remembered that these were made in obedience to testamentary instructions and at a time when the estate appeared to be solvent. Hicks v. Purvis,
Secondly, as to the household and kitchen furniture, specifically bequeathed by the will (Heyer v. Bulluck,
Thirdly, in regard to 40 per cent of the credit made on the Lipe judgment: This adjustment of the house rent, it will be observed, was made by the executors prior to notice of any interest which counsel held in said judgment. The judgment was in Lipe's name, and it is not perceived upon what principle the executors could be held liable for dealing with him as the owner thereof. Ricaud v. Alderman,
The liability of C. H. Lipe for the 40 per cent in question, which, perhaps, would be conceded, is not presented by the record.
The exceptions will be remanded for rulings accordant herewith.
Error and remanded.