79 N.C. 77 | N.C. | 1878
The defendants who are the two older children of the testator say that the insurance money was received by the guardian of (79) all the children, and that instead of having been used by him as directed by the testator in compromising and discharging his debts, (except certain debts provided for in a deed of trust) was partly applied by the guardian to buying up and keeping alive for the use of his wards the debts of the testator which he had directed to be compromised and discharged, and partly in buying up on the same trust the debts of *72 the testator provided for in the deed of trust which the testator had excepted from those which he had directed to be compromised. These purchases were not made under or in obedience to the will, but as investments for the wards.
The petitioners say that they ought not to be required to make an election until it shall be ascertained, first, by an account how much of the insurance money has been applied in buying up the debts which the testator had directed to be compromised, and how much otherwise, and second, the value of the land, by a sale. And they pray for such an account and for a sale of the land.
No answer on behalf of the infant plaintiffs was put in to this petition, but the interest of the infants can not be prejudiced by this omission of their guardian. No evidence appears to have been given of the facts stated in the petition, and the Judge does not find them.
If under any circumstances a judgment declaring expressly or impliedly certain facts as admitted by the pleadings could be reviewed and reversed as to those facts, and the case heard again upon a different state of facts presenting different questions of law for the decision of the Court, certainly it can only be done upon a direct proceeding to that end, and not in the collateral proceeding here used, and upon proof of the newly alleged facts. We must therefore disregard the statements of the petition of any other or different state of facts (80) from that agreed upon by the parties in their pleadings in the principal action, on which it was originally heard in the Court below, and upon appeal in this Court.
We may say this however, not as necessary to the decision of this case, but as pertinent to the facts now alleged, that if the guardian instead of compromising and discharging the debts of the testator had in fact bought them and kept them alive for the benefit of his wards and refused to discharge them at the maximum rate fixed by the testator, then there would have been no case for an election by the defendants between the money and the land; for in that case they would be entitled to their shares of the fund, and the devise of the whole land to the plaintiffs would have been absolute by the terms of the will. In such case the guardian would have exceeded his powers and violated the trust reposed in him, and it would be in the election of each one of his wards, either to take his share of the fund in money, or in the property in which the fund had been invested.
Considering the facts to be as admitted by the pleadings in the principal case which we have again examined, as it did not distinctly appear in that case (although it seems to have been assumed in the pleadings *73 and on the hearing both by the counsel and by the Court) that thewhole fund had been used in discharging the debts which the testator had directed to be discharged, it is yet open to the defendants to contest this, and to have it ascertained by an account how much of the fund was used in this way; for by the will it is only such a part of the land as is equivalent to the sum so sued, which is to be set apart to the four youngest children in addition to the shares which they would have taken upon an equal division among all the children. We think that in this respect, that is, in refusing such an account, the order below was erroneous; and it is certain that such an inquiry must be made before a final decree, because if the whole fund has not (81) been spent, and less than the whole has sufficed, the plaintiffs will be entitled by the terms of the will — in case the defendants elect to take their whole shares in the fund — not to the whole land, but only to an equivalent as has been stated, and the defendants will be entitled to their share of any excess of the fund, and also to shares in the land after the equivalents given to the plaintiffs have been deducted. It does not appear to us how such an account can aid the defendants in making their election, but, as it does not appear that it can injury any one, and it must ultimately be taken, we see no reason why it should not be taken before the defendants are required to elect. To that extent the order below is reversed.
As to the prayer for the sale of the land: No Court has power to order a sale of the land of an infant, or indeed of a party generally, except in a case where the land is bound by some trust, or the like, or where the power is given by some statute, and we are not aware of any which gives it in a case like this. The defendants must act upon their own estimate of the value of their shares in the land. They may perhaps have been misled by the language of the opinion, "that there was no way to ascertain the value of the land except by a sale, and a sale had not been asked for." This meant merely that as a sale was not asked for, the question of ordering it had not been considered. Although the valuation of land by appraisers is uncertain, yet it is adopted in all cases of partition, except where an actual partition can not be made without injury, and that fact must be clearly established before the Court will order a sale for Partition. In the present case it will suffice to say that upon the facts now appearing, no Court has the power to order a sale. In this respect the judgment below is affirmed.
The judgment below requiring the defendants to elect before the taking of the account described is reversed, and the case is remanded to be proceeded in accordance to this opinion. As the (82) *74 Judgment is partly sustained and partly reversed, neither party will recover costs in this Court.
PER CURIAM. Judgment accordingly.