Darden v. Boyette

• Decision Date: 30 October 1957
• Docket Number: No. 173,173
• Citation: 247 N.C. 26,100 S.E.2d 359,268 A.L.R.2d 1098
• Court: North Carolina Supreme Court
• Parties: , 68 A.L.R.2d 1098 O. W. DARDEN, Administrator c. t. a. of the Estate of J. C. Darden, Deceased, v. L. E. BOYETTE and M. F. Smith, Administrators of the Estate of Ruby Darden, Deceased.

Page 359

100 S.E.2d 359

247 N.C. 26, 68 A.L.R.2d 1098

O. W. DARDEN, Administrator c. t. a. of the Estate of J. C.

Darden, Deceased, v. L. E. BOYETTE and M. F. Smith, Administrators of the Estate

of Ruby Darden, Deceased.

No. 173

Supreme Court of North Carolina.

Oct. 30, 1957

Butler & Butler, clinton, for plaintiff, appellee.

J. Faison Thomson & Son, Goldsboro, and Britt & Warren, Clinton, for defendants, appellants.

PARKER, Justice.

J. C. Darden and Annie Ruby Darden were husband and wife. No child was born of their marriage. J. C. Darden died on 3 January 1953. After his death his will was duly probated, and is of record in Will Book 11, p. 503 et seq., in the Office of the Clerk of the Superior Court of Sampson County. He appointed his wife as sole executrix of his will.

The relevant items of his will are:

'Item 1. I give, devise, and bequeath unto my beloved wife, Annie Ruby Darden, for and during her natural life, all my property, real and personal, of every nature and kind, and wheresoever located, which I may have and own at the time of my death, after first paying therefrom my funeral expenses and any just debts that I may then owe, to have and use in any way or manner she may see fit, and with full power to dispose of the same by deed or will in fee simple.

'Item 2. At the time of the death of my said wife, if there shall be any of said property, real or personal, left undisposed of by my said wife during her lifetime, the same shall, after payment of her funeral expenses in case her own estate is insufficient to pay the same, be divided among my then heirs at law per stirpes and not per capita.'

On 14 January 1953 letters testamentary were duly issued by the court to his wife as executrix of his estate. She entered upon the administration of his estate, and administered it according to the will. On 6 January 1954 she filed an inventory with the court setting forth all property received by her as executrix of his estate, which is as follows: $7,005.78 money deposited in two banks, $1,300 in U. S. Postal Savings, $28.05 from the Flue Cured Stablization Corporation, and hogs, mules and farming equipment valued at $1,117.21, a note of Isabella Stevens for $898.17, and a note of Stephen Bass for $634.61, making a total of $10,983.82.

On 25 March 1954 the executrix filed her final account with the court, and requested the court to accept it as such, and to discharge her bond from any future liability. In this final account she showed receipts of $8,646.04, itemized as follows: money received from two banks $7,005.78, U. S. Postal Savings $1,300, money received from the sale of hogs $312.21, money received from tobacco $28.05. She showed disbursements in the amount of $1,527.72, consisting of funeral expenses, taxes and cost of administration. Her final account showed cash in the sum of $7,118.32, which she paid to herself under her husband's will. The Record does not show whether the court accepted her final account or not, and discharged her bond. However, the plaintiff in paragraph 4 of his complaint alleges that she administered her husband's estate pursuant to his will, and the answer admits such allegation to be true. The plaintiff further alleges in his complaint that after the payment of funeral expenses, and all debts of the deceased, and the costs of administration, a net balance of cash belonging to the estate of J. C. Darden in the sum of $7,118.32 was received by Annie Ruby Darden under her husband's will.

Annie Ruby Darden died intestate on 17 July 1954. The defendants were duly appointed by the court administrators of her estate. The plaintiff offered in evidence an Inventory and Report of Sale of the estate of Annie Ruby Darden, made by her administrators to the court, which tend to show that Annie Ruby Darden at the time of her death had in her possession, and undisposed of, the following property she took under her husband's will: the Isabella Stevens note, the Stephen Bass note, farming utensils, which her administrators sold for $1,621.17, and money. This inventory showed the administrators of her estate received personal assets of $42,478.36.

The heirs of J. C. Darden at the death of his wife were his five brothers, his four sisters, and the six children of a deceased brother. The uncontradicted evidence shows that Annie Ruby Darden's own estate was sufficient to pay her funeral expenses.

The plaintiff alleges in his complaint that as administrator of the estate of J. C. Darden, he is the owner, and entitled to the immediate possession, of the sum of $7,118.32, which Annie Ruby Darden received from her husband's estate by his will, of $1,621.17 representing the price received by her administrators at the sale of the farming utensils she received from her husband's estate by his will, and of the Isabella Stevens and Stephen Bass notes she received from her husband's estate by his will. That Annie Ruby Darden took only a life estate by her husband's will, and that upon her death his property is to be divided among J. C. Darden's then heirs at law per stirpes. Wherefore, the plaintiff prays that he be adjudged the owner, and entitled to the immediate possession of this property.

The following issues were submitted to the jury, and answered as appears:

'1. Is the plaintiff the owner and entitled to the possession of the money, notes and tangible personal properties described in the complaint received by defendants' intestate, Annie Ruby Darden, from the Estate of J. C. Darden? Answer: Yes.

'2. What was the amount of cash received by defendants' intestate, Annie Ruby Darden, from the Estate of J. C. Darden? Answer: $7,118.32.

'3. What was the value on 17 July, 1954, of the tangible personal property received by defendants' intestate, Annie Ruby Darden, from the Estate of J. C. Darden? Answer: $1,621.17.'

Judgment was entered that plaintiff as administrator c. t. a. of the estate of J. C. Darden, deceased, is the owner of and entitled to the immediate possession of the Isabella Stevens and Stephen Bass notes, and shall recover from the defendants $7,118.32, with interest, and $1.621.17 with interest.

The defendants offered no evidence. They alleged in their answer as a defense that J. C. Darden had received money and property of his wife, which he deposited and invested in his name, and that at his death he was holding this property as trustee for her.

Defendants assign as error the denial of their motion for judgment of nonsuit. The defendants contend that the uncontradicted evidence clearly shows that the plaintiff, administrator c. t. a. of the estate of J. C. Darden, deceased, has no right, title or interest in the action, and therefore should be nonsuited. If such contention is correct, it was error not to nonsuit the plaintiff. Chapman & Co. v. McLawhorn, 150 N.C. 166, 63 S.E. 721; Vaughan & Barnes v. Davenport, 157 N.C. 156, 72 S.E. 842; Fidelity & Casualty Co. v. Green, 200 N.C. 535, 157 S.E. 797; Hunt v. State, 201 N.C. 37, 158 S.E. 703; McCarley v. Council, 205 N.C. 370, 171 S.E. 323.

Our North Carolina cases hold, and the great majority of the cases from other jurisdictions are in accord, that where an estate for life, with remainder over, is given by will, with a power of disposition in fee of the annexed remainder, the limitation for the life of the first taker will control, and the life estate will not be enlarged to a fee. Voncannon v. Hudson-Belk Co., 236 N.C. 709, 73 S.E.2d 875; Hardee v. Rivers, 228 N.C. 66, 44 S.E.2d 476; Alexander v. Alexander, 210 N.C. 281, 186 S.E 319; Helms v. Collins, 200 N.C. 89, 156 S.E. 152; Carroll v. Herring, 180 N.C. 369, 104 S.E. 892; Chewning v. Mason, 158 N.C. 578, 74 S.E. 357, 39 L.R.A.,N.S., 805; Patrick v. Morehead, 85 N.C. 62; Troy v. Troy, 60 N.C. 624; Annotation 36 A.L.R. p. 1180 et seq., where the cases are cited from 24 states, from England and from Canada; 33 Am.Jur., Life Estates, Remainders, etc., sec. 21.

A life estate devised in clear and express words to testator's wife is not enlarged to a fee by power given to the life tenant to use the life estate in any way or manner she may see fit, where a remainder over is given by express words in the will of any of his property left undisposed of by his wife during her life, at her death, to his then heirs at law. Chestnut v. Chestnut, 300 Pa. 146, 151 A. 339, 75 A.L.R. 66; Peckham v. Lego, 57 Conn. 553, 19 A. 392, 7 L.R.A. 419, 14 Am.St.Rep. 130; Note 7 L.R.A. 419; 33 Am.Jur., Life Estates, Remainders, etc., sec. 27.

In Jones v. Fulbright, 197 N.C. 274, 148 S.E. 229, there was a bequest to the wife by the husband in his will of all his personal property during her life to be used and disposed of by her as she saw fit during life, and the proceeds not disposed of by her before death, shall be collected and sold for cash by a commissioner appointed by the Superior Court of Henderson County, who shall pay the balance, after payment of necessary expenses, one-half to the heirs of his wife and one-half to the heirs of his dead sisters. It was held that the wife took a life estate, and had no power to dispose of any of the property by will.

In Williard v. Weavil, 222 N.C. 492, 23 S.E.2d 890, it was held that a life estate with remainder over to designated persons can be created by will in money.

Annie Ruby Darden was given a life estate by her husband's will in all his property. She died intestate. Her own estate was more than sufficient to pay her funeral expenses. Any of her husband's estate left by her undisposed of during her life-time, at her death, vested by the terms of his will in his then heirs at law, to be divided among them per stirpes. Voncannon v. Hudson-Belk Co., supra, 236 N.C. at page 712, 73 S.E.2d at page 878.

When a person dies, his personal property vests upon his death in his executor or administrator, and his real property vests in his devisees, or descends to his heirs. Moore v. Jones, 226 N.C. 149, 36 S.E.2d 920; Linker v. Linker, 213...