Dulin v. Dulin

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: Dulin v. Dulin, 197 N.C. 215, 148 S.E. 175 (N.C. 1929)
• Decision Date: 15 May 1929
• Docket Number: 497.
• Parties: DULIN et al. v. DULIN et al.

148 S.E. 175

197 N.C. 215

DULIN et al. v. DULIN et al.

No. 497.

Supreme Court of North Carolina

May 15, 1929

Appeal from Superior Court, Iredell County; Harding, Judge.

Action by P. P. Dulin, as executor of the estate of C. A. Dulin deceased, and individually, and another against William Dulin and others. Judgment for plaintiffs, and defendants Maxwell appeal. No error.

Will directing testator's brother to educate sister's daughters and divide rest equally, except shares of two nephews, held to provide for nephews and nieces to exclusion of brother and sisters.

The following paper writing, purporting to be the last will and testament of C. A. Dulin, was probated in common form before the clerk of superior court of Iredell county and duly registered in the record of wills:

"August 11, 1926.

"Bro. P. P. Dulin, If should die or get kill give Fannie Millsaps $2,000.00 of my estate Educate sister Anns two girls and devide the rest equal except Paul Lentz and Ralph Lentz give them $5,000 less than the others or nothing at all of my nephews and neases.

"C. A. Dulin."

Thereafter P. P. Dulin duly qualified as executor of C. A. Dulin's estate. Fannie Millsaps died during the life of C. A. Dulin, and her legacy lapsed. On January 10, 1929, the plaintiffs instituted this action in the superior court of Iredell seeking the advice of the court as to the proper construction of the will. Pleadings were filed, and certain of the defendants raised an issue of devisavit vel non. It was then agreed by all parties in open court that the action should be treated as a caveat to the will and as a proceeding to have the will probated in solemn form, and that if the issue should be answered for the propounders, the construction of the will should be determined by the court. Evidence was introduced, and the defendants tendered this issue:

Did C. A. Dulin write all of paper writing propounded, with intent that it should be operative as his last will and testament, and was it found after his death among his valuable papers or effects?

The following verdict was returned: "Is the paper writing and every part thereof offered in evidence as Exhibit A the last will and testament of C. A. Dulin, deceased? Answer: Yes."

The appellants excepted to the issue submitted and to the refusal to submit the one they tendered. After adjudging that P. P. Dulin had been duly appointed executor, the trial judge construed the will as follows:

"Upon the prayers by the executor for instructions and interpretations of said will, it is ordered, adjudged and decreed by the court, as follows: (a) That the extent, manner, and degree of education of Frances and Sarah Maxwell (admitted by all parties to be sister Ann's two girls referred to in the will) is in the sound discretion of the executor, and the executor has right to set apart an amount which he deems sufficient for that purpose and divide the rest of the estate among those entitled. (b) In view of the fact that the two girls, Sarah and Frances Maxwell, are without any means of support and maintenance, which fact was known to C. A. Dulin at the time he made said will, the education of said girls includes their maintenance and support during the period that they are being educated. (c) That the said girls, Sarah and Frances Maxwell, shall share equally with the other nieces and nephews in said estate after receiving their education from said estate. (d) That the shares of Paul Lentz and Ralph Lentz (two of the nephews of C. A. Dulin) are to be charged with $2,500 each before they participate in the estate with the other nieces and nephews; but the executor has no right in his discretion to exclude them entirely from participation in his estate. (e) That it is the duty of the executor under the will to sell and dispose of all the estate of C. A. Dulin, both real and personal, and after the payment of all debts of the said estate and charges and expenses of the administration of said estate and after setting apart a sum which the executor deems sufficient for the education of Frances and Sarah Maxwell and their support and maintenance during the period that they are being educated, as set forth in the above sections (a) and (b), the executor shall divide the estate equally among the following nieces and nephews of C. A. Dulin, whom the court finds to be all of the nieces and nephews of C. A. Dulin, living at the time of his death, subject, however, to the charge of $2,500 each against the shares of Paul and Ralph Lentz as set forth in section (d) above: William Dulin, Lucile Dulin (children of P. P. Dulin, brother of C. A. Dulin); Frances Maxwell, Sarah Maxwell (children of Mrs. Ann Maxwell, sister of C. A. Dulin); Ralph Lentz, Fred Lentz, Ben Miller Lentz, Wilma Marjorie Lentz, Jerry Junior Lentz, Elizabeth Ellen Lentz, and Paul Lentz (children of Mrs. Mary E. Lentz, sister of C. A. Dulin). (f) That under the said will P. P. Dulin, the executor, has power to sell and convey the real estate of C. A. Dulin without securing an order of court through a special proceeding instituted for that purpose.

"It is further ordered, adjudged, and decreed that P. P. Dulin, Mrs. Ann Maxwell, and Mrs. Mary E. Lentz, the brother and two sisters of C. A. Dulin, deceased, have no share or interest in the estate of C. A. Dulin, under the aforesaid will, but that all of said estate, both real and personal, is bequeathed and devised to the nieces and nephews of C. A. Dulin, hereinbefore named, and subject to terms hereinbefore mentioned."

Judgment was rendered for the plaintiffs, and the appellants named above duly excepted and appealed upon error assigned in the record.

P. T. Stiers, of Reidsville, for appellants.

Scott & Collier and E. M. Land, all of Statesville, for plaintiff appellees.

Van Buren Jurney, of Statesville, for defendant appellees.

ADAMS J.

In Harper v. Harper, 148 N.C. 453, 458, 62 S.E. 553, 555, the court said this: "We note that this proceeding, brought to term, includes both the issue of devisavit vel non and proceedings for the construction of the will. This is certainly unusual, but all the parties are before us, and ask that the whole matter be determined in this action. It is not a question of jurisdiction (which we would be compelled to notice ex mero motu), for the clerk is part of the superior court. No exception is taken, and the whole matter, under the consent and request of parties, is disposed of." The parties to the present suit agreed to pursue the same course and accordingly did not except to the form of the action. It is not denied that the executor had the right to invoke the equitable jurisdiction of the court for direction as to the discharge of his trust. Freeman v. Cook, 41 N.C. 373; Alsbrook v. Reid, 89 N.C. 151; Commercial Nat. Bank of Charlotte v. Alexander, 188 N.C. 667, 125 S.E. 385; Wachovia Bank & Trust Co. v. Stevenson, 196 N.C. 29, 144 S.E. 370.

The appellants excepted to the issue submitted and to the judge's refusal to submit to the jury the issue which they tendered. The exception is overruled upon the familiar principle reiterated upon similar facts in Cornelius v Brawley, 109 N.C. 542, 14 S.E. 78: "The issue submitted arose on the pleadings, and was such as afforded either party opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions, and was therefore sufficient (Humphreys v. [Board of Trustees of Front St. M. E.] Church, ante [109 N. C.] 132 ; McAdoo v. [Richmond & D.] R. R., 105 N.C. 140 [11 S.E. 316]; Denmark v. [Atlantic & N. C.] R. R., 107 N.C. 187 [12 S.E. 54]; Leach v. Linde, 108 N.C. 547 [13 S.E. 212]), and, indeed, follows the precedents in such cases. Eaton's Forms, 282. The issues suggested by appellants presented rather evidential...