24 S.E. 114 | N.C. | 1896
The facts are stated in the opinion. Amos L. Simmons, in his last will and testament, devised his real estate, one-fourth to his son George, one-fourth to his son Charles, one-fourth to his daughter Elizabeth, wife of Joseph Rhodes, and one-fourth to his grandchildren, Leah, John A., Mary F., Sophia D. and Robert D. Jones. The share of Charles was to be charged with the sum of $270, and the share of Elizabeth with the sum of $450, sums advanced to them, respectively, by their father in his lifetime, unless they should, respectively, pay these sums in the lifetime of the testator or afterwards and before the lands should be divided, or unless such amounts remaining unpaid on these advancements should not be paid with their shares of the personal estate.
A petition for partition of these lands was filed before the clerk of the Superior Court by George and Charles Simmons and Elizabeth Rhodes against the grandchildren above named, and the rights of the parties set out therein in accordance with the provisions of the will, the charges on the shares of Charles and Elizabeth being particularly mentioned. The petition contained no intimation that there was any personal property or money of the estate of the testator in the hands of the executor or any other person with which to pay off the charges on the shares of Charles and Elizabeth. The clerk made the order for partition and adjudged that the shares of Charles and Elizabeth be charged, respectively, with the sums imposed upon them under the will of their father. After the order for partition (474) *292 was made, the petitioners, Elizabeth and her husband, moved before the clerk to amend the petition so that it might allege that Mrs. Rhodes be declared "entitled to be accredited as a payment of the amount of money in the hands of the executor to which she might be entitled as legatee or distributee" under the will. The clerk refused to allow the amendment, and they excepted to his ruling.
If the amendment had been allowed it would not have amounted to an explicit declaration that there was a sum of money in the hands of the executor to which Mrs. Rhodes was entitled as legatee or devisee. As an allegation it was not positive, certain and unequivocal; it was not even an inferential statement of a fact. But, besides that objection to the proffered amendment, the allowance or rejection of it was a matter of pure discretion with the clerk. Wiggins v. McKoy,
Affirmed.