Culp v. Lee

• Decision Date: 23 December 1891
• Citation: 14 S.E. 74,109 N.C. 675
• Parties: CULP et al. v. LEE.
• Court: North Carolina Supreme Court

14 S.E. 74

109 N.C. 675

CULP et al. v. LEE.

Supreme Court of North Carolina

December 23, 1891

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.

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.

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 niece Martha, wife of Charles Stanford, in equal portion, share and share alike to them, and each and every of them, 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. Forsy the, 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. Barringer 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 distributes, if suijuris, so that the lapse of 10 years certainly would bar an action against him. Code, § 158; Wyrick v. Wyrick, 106 N.C. 86, 10 S.E. Rep. 916. If not, indeed, six years. Code, § 154, (2;) Vaughan v. Hines, 87 N.C. 445; Andres v. Powell, 97 N.C. 155, 2 S.E. Rep. 235; Kennedy v. Cromwell, 108 N.C. 1, 13 S.E. Rep. 135. If the plaintiffs had been without a guardian to represent them, the...