62 S.E. 549 | N.C. | 1908
HOKE, J., concurs in result.
David J. Knowles, lately domiciled in Sampson County, died in November, 1907, having first made and published his last will and testament, the first item of which is in the following words: "I give, devise and bequeath unto my wife, Margaret Knowles, all my personal property, to use as long as she lives, and at her death to be equally divided among my children, my grandchildren, Fred Knowles and Leona Knowles, to share as one child. Also, I give unto my wife during her lifetime full privilege and control of my land and real estate." In another item he gave all the "rest and residue" of his personal property or real estate, to be equally divided between his children and grandchildren. He appointed his wife, Margaret Knowles, and A. W. Knowles executors, etc. The will was duly admitted to probate on 8 November, 1907, and the executors duly qualified. On 27 December, 1907, the executors returned to the court an account of sale of a portion of the personal property, which came into their hands from the estate of their testator, amounting to $121.32. On 15 February, 1908, the petitioners filed in the Superior Court a petition alleging that they had an (463) interest in the real and personal property of the testator; that at the time of his death he had a large amount of cash on hand, besides notes and other solvent credits, and a great deal of personal property, which ought to have come into the hands of the executors; that they had failed to file an inventory, as required by law; that they were insolvent, etc., and praying that they be required to file an inventory and to show cause why they should not be required to give a justified bond, and, in default thereof, that they be removed. Pursuant to the petition, the Clerk issued a citation to the executors to show cause, etc. In reply to said notice the executors filed their answer, admitting that certain personal property came into their hands, and averring that they were not concerned as executors with any of the personal property, saving and excepting a sufficiency to pay off the debts of the testator, and that they had sold enough for that purpose and had settled all of the debts, etc.; that, under the terms of the will the widow, Margaret Knowles, was given all of the personal property. They deny the right of the petitioners to question their management of the estate. On 9 March, 1908, the Clerk made an order directing the executors, on or before 19 March, 1908, to file an inventory, etc. On said day the *347
executors filed an inventory of the personal property, which was delivered to or retained by the widow, under the provisions of the will, consisting of two mules, on horse, eleven head of cattle, nine hogs, one wagon, a lot of household and kitchen furniture and some agricultural implements, twenty barrels of corn, 1,000 pounds of shucks, 500 pounds fodder and $580 in money. The money was deposited in the bank, to the credit of Mrs. Knowles. They also filed an account showing the receipt of $121.32 from sale of property and the payment of $168.68 on account of debts, burial expenses, tombstone, doctor's bill, taxes, attorney's fees, etc. On the hearing the Clerk found upon the evidence and exhibits that the executors were competent to manage the estate of their testator, and that it had not been squandered or misapplied, (464) and that no fraud had been practiced or attempted to be practiced. He rendered judgment dismissing the petition and taxing the petitioners with the cost. From this judgment petitioners appealed to the Judge, who affirmed the judgment requiring the executors to file in the Clerk's office every four months a statement of their account, with permission to petitioners, if it appeared that they were wasting the estate, to apply for the appointment of a receiver. From this judgment petitioners appealed.
We concur with the order made by his Honor affirming the action of the Clerk. It is settled that the court will not remove an executor by reason of insolvency, when such condition existed at the time the will was executed and was known to the testator, unless it appears that he is wasting or misapplying the assets. Barnes v. Brown,
The petitioners, however, insist that by delivering to the widow the personal property not sold, including the money on hand, the executors have committed a devastavit. They contend that it was the duty of the executors to have sold the property and with the proceeds, together with the money on hand, created a fund, to be invested during the lifetime of the widow, paying to her the interest, to the end that upon her death the corpus be paid to them. The learned and diligent counsel cited to us a number of cases which he contended sustained his view. It *348
(465) is, of course, the duty of the court, in all cases involving the construction of a will, to ascertain and effectuate the intention of the testator. This, it has been wisely said, is the "pole star" by which the court will be guided. While this statutory proceeding is not in a strict sense a suit to have the will construed, it becomes necessary to do so for the purpose of ascertaining whether, in delivering the property and paying the money to the life tenant, the executors have committed a devastavit. For this purpose only, and not for the purpose of concluding the parties in interest in any other properly instituted proceeding, we proceed to consider the duty of the executors under the provisions of the will. In Smith v. Barham,
Affirmed.
Cited: Haywood v. Trust Co.,
(469)