Finley v. Finley

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR, J.
• Citation: Finley v. Finley, 201 N.C. 1, 158 S.E. 549 (N.C. 1931)
• Decision Date: 20 May 1931
• Docket Number: 560.
• Parties: FINLEY et al. v. FINLEY et al.

158 S.E. 549

201 N.C. 1

FINLEY et al. v. FINLEY et al.

No. 560.

Supreme Court of North Carolina

May 20, 1931

Appeal from Superior Court, Wilkes County; Grady, Judge.

Action by J. R. Finley, executor of J. T. Finley, deceased, and another, against S. G. Finley and others, heirs at law and devisees of J. T. Finley and another, both deceased. From the judgment, S. G. Finley appeals.

Appeal and action dismissed.

Equity does not exercise advisory jurisdiction to construe wills if no trust has been created.

This is an action for the purpose of determining the quality of the estate which was devised to each of the devisees named in the last will and testament of J. T. Finley, deceased, in the lands owned by the testator at his death.

J. T Finley died on May 12, 1926, leaving a last will and testament, which has been duly probated and recorded in the office of the clerk of the superior court of Wilkes county. The pertinent provisions of his said last will and testament are as follows:

"I give and bequeath all of my property, real and personal, of every nature whatsoever, as follows:

"One-sixth to my sister, Clara Finley; one-sixth to my sister, Annie Finley; one-sixth to my brother, J. R. Finley; one-sixth to my brother, S. G. Finley; one-sixth to my niece, Mary Gordon Greenlee; one-sixth to my niece, Ella Ogilvie; and upon the death of either of said devisees, without heirs their part to go to the other devisees above named, or their heirs, provided, however, that my sisters, Clara and Annie Finley, shall have for their joint lives, and for the life of the survivor, the rents from my brick garage on C. Street, North Wilkesboro, N. C., with fifty feet front and one hundred and forty feet deep, taxes and upkeep to be paid from rent.

"I appoint my brother, J. R. Finley, executor of this my last will and testament, and my wish is that no bond be required of him."

The plaintiff J. R. Finley, as executor of said last will and testament, has practically completed the administration of the estate of his testator, and has paid to each of the legatees named therein his or her share of the personal property owned by the testator at his death, and bequeathed to said legatees by said last will and testament.

The plaintiff J. R. Finley, acting under a power of attorney, executed by the devisees named in the last will and testament of his testator, has sold and conveyed the real estate owned by his testator at his death, and devised to said devisees by said last will and testament. He now has in hand funds and securities derived from the sale of said real estate, to be distributed among the said devisees in accordance with their respective interests therein. Since the execution of said power of attorney and the sale of said real estate, a controversy has arisen among the said devisees with respect to the quality of the estate which each of them took under the provisions of the last will and testament of J. T. Finley, deceased. This action was instituted by the plaintiff J. R. Finley, as executor of the last will and testament of J. T. Finley, deceased, and by the administratrix c. t. a. of Miss Clara Finley, who has died since the death of J. T. Finley, for the purpose of having the court to determine the quality of the estate which each of the devisees named in said last will and testament took in the real estate devised to them under and by virtue of the provisions thereof.

When the action was called for hearing, a trial by jury was wavied by all the parties. On the facts found by the court, it was ordered, considered, and adjudged that each of the devisees named in the last will and testament of J. T. Finley took an estate in fee simple in the share of the real estate devised to him or to her by said last will and testament, and an absolute title to the share of the personal property bequeathed to him or her thereby. It was ordered that J. R. Finley, executor of J. T. Finley, deceased, and Miss Annie M. Finley, administratrix c.t.a. of Miss Clara M. Finley, administer their respective estates in accordance with the judgment of the court.

From this judgment, the defendant S. G. Finley appealed to the Supreme Court.

Frank D. Hackett, of North Wilkesboro, and Eugene Trivette, of Boone, for appellant S. G. Finley.

Charles G. Gilreath, of Wilkesboro, for appellees.

CONNOR J.

After the appeal from the judgment of the superior court in this action had been docketed in this court, the defendant S. G Finley moved that both the appeal and the action be dismissed, for the reason that the facts alleged in the complaint are not sufficient to constitute a cause of action of which the superior court of Wilkes county had jurisdiction. This motion was in effect a demurrer ore tenus to the complaint on these grounds. The defendant, by filing an answer to the complaint in the superior court, did not waive his right to...