Culp v. Lee

• Court: North Carolina Supreme Court
• Writing for the Court: Clark, J
• Citation: Culp v. Lee, 109 N.C. 675, 14 S.E. 74 (N.C. 1891)
• Decision Date: 23 December 1891
• Parties: CuLP et al. v. Lee.

14 S.E. 74

109 N.C. 675

CuLP et al.

v.Lee.

Supreme Court of North Carolina.

Dec. 23, 1891.

Construction op Will—ExecctoRs and Administrators — Accounting — Limitation of Actions—Rights of Minor Devisef, s.

1. A residuary clause in a will directed that the surplus should be "equally divided and paid over" to P., R., "and the children of my niece, M., * * * in equal portion, share and share alike, to them, and each and every of them." Held, that the devise was per capita, and not to the children of M. per stirpes, as a class.

2. Under such clause, a child of M., born the day after testator's death, is entitled to share with the other children.

3. Where a guardian of devisees settles with the executor of an estate, and receives less than his wards are entitled'to, they are not limited to a suit against the guardian on his bond, for his default, but may sue either the guardian or the executor, or both.

4. Where an action by a guardian of devisees against the executor for the sums due the wards is barred by the statute of limitations, an action by the wards on their coming of age is also barred.

Appeal from superior court, Mecklenburg county; Hoke, Judge. Action by M. Culp and others against D P Lee, executor, etc. Judgment for plaintiffs, and defendant appeals. Reversed.

Dowd & Son and Burwell & Walker, for appellant.

Jones & Tillett and Cansler & Bell, for appellees.

Clark, J. 1. The direction in the residuary clause that the "surplus shall be equally divided and paid over to Philip J. Russell, Miss Mary Russell, and the children of my uiece Martha, wife of Charles Stanford, in equal portion, share and share alike, to them, and each and every of tbem, their executors, administrators, and assigns, absolutely, forever, " was properly construed as a devise per capita, and not to the children of Martha Sanford per stirpes, as a class. The authorities Bryant v. Scott. 21 N. C. 155; Cheeves v. Bell, 54 N. C. 234; Harrell v. Davenport, 58 N. C. 4; Hill v. Spruill, 39 N. C. 244; Waller v. Forsythe, 62 N. C. 353; Harris v. Philpot, 40 N. C. 329; Lane v. Lane, 60 N. C. 630; Ward v. Stowe, 17 N. C. 509; and other cases cited by counsel, —are in point. There is nothing in the will which takes this case out of the settled rule of construction. The intention of the testator expressed that the surplus should be "equally divided" between the beneficiaries, —Philip Russell, Mary Russell, and the children of Martha Stanford, —and that they shall take "in equal portion, share and share alike, to them and each and every of them, " points clearly to a per capita division among them.

2. The child of Martha Stanford born the day after the testator's death is entitled to share with the other children. Bar-ringer v. Cowan, 55 N. C. 436.

3. If the guardian received for his wards a less sum than they were entitled to receive, it is true they can sue the guardian and his sureties for his default, but they have their election to sue either the guardian or the executor from whom he insufficiently collected the fund devised to them, or both. Harris v. Harrison, 78 N. C. 202; Luton v. Wilcox, 83 N. C. 21. It has been held that where a receiver, appointed to take charge of a ward's estate, makes a settlement with the guardian, and executes a release to him, even under the direction of the court, such settlement and release are not conclusive against the ward. Temple v. Williams, 91 N. C, 82. The settlement made in this case by the defendant with the guardian of the plaintiffs had no other effect than to put the burden on plaintiffs to prove that the settlement made by defendant with their guardian was not a full payment of the sum due them, and which the guardian should have collected in their behalf.

4. When the defendant filed his final account, 19th December, 1876, it closed the trust, as between him and the distributees, if sui juris, so that the lapse of 10 years certainly would bar an action against him. Code, §158; Wyrick v....