Fisher v. Fisher
| Decision Date | 08 December 1915 |
| Docket Number | 366. |
| Citation | 87 S.E. 113,170 N.C. 378 |
| Parties | FISHER ET AL. v. FISHER ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Lyon, Judge.
Action by Isabella Fisher, administratrix with the will annexed, and others, against Olivia Maude Fisher and others. Heard on petition alleging unauthorized and improper expenditures by C. A. Bray, trustee, and on report of the referee. Judgment confirming the report, and defendants appeal, the administratrix joining therein. Affirmed.
Compensation of 5 per cent. of the amount of the estate and accruing income, allowed trustee appointed to manage testator's deeply involved estate of $100,000, which he did for ten years, held proper.
On perusal of the record it appears that B. J. Fisher died in 1913, leaving him surviving a widow, Isabella, who qualified as administratrix with the will annexed, and several minor children, defendants, and a last will and testament in which the bulk of his property in America was devised and bequeathed to his wife for life, remainder to his children on the death or marriage of his widow, and directing, among other things, that the property not applied or necessary to be spent, etc., for his children should be invested in government securities, etc.
An investigation having disclosed that the estate of B. J Fisher was greatly embarrassed and incumbered with debt liens, etc., it was considered necessary that, in order to preserve said estate and save something for the devisees under the will, the same should be placed in the control of competent business management, and in 1904 the present suit was instituted by Isabella Fisher, administratrix, against the infant children, a guardian ad litem duly appointed, and decree therein was made appointing Mr. A. L. Brooks, of Greensboro, commissioner and receiver of the estate, who immediately qualified and entered on the duties of his office. Having faithfully served in this capacity for two years and more, and accomplished the purpose for which he was primarily appointed, to wit, relieving the estate from debt and conserving a substantial property for the widow and children of the testator, Mr. Brooks made a full report of his acts, etc., as receiver to June term, 1906, and, at his own request and with the sanction and approval of the court was allowed to resign from his office, and Mr. C. A. Bray the present trustee, was, by decree of court and at the instance of the administratrix, appointed trustee for the further management of the estate, then amounting to something over $100,000, about one-half of which was real estate principally situated in the city of Greensboro. The said trustee entered on his official duties and continued to act as trustee in the cause and in the control and management of the property, making reports from time to time until 1914, when the present petition was filed asking for an account and alleging various improper and unauthorized expenditures in the management of the property. At March term, 1914, the questions presented were referred by order of court to Mr. T. C. Hoyle, who heard evidence and made a full and careful report of the acts of the trustee to September term, 1914, approving his management and recommending that the balance due him for fees, etc., be paid as charged.
Exceptions having been filed by defendants the matter was heard, as stated, at spring term, 1915, and the court, overruling all of the exceptions, entered judgment that the report be confirmed, and defendants, having duly excepted, appealed, and the administratrix also joins in said appeal.
G. S. Bradshaw and R. C. Strudwick, both of Greensboro, for appellants.
A. Wayland Cooke, of Greensboro, Peacock & Dalton, of High Point, and C. M. Stedman, of Greensboro, for trustee.
W. P. Bynum, of Greensboro, for appellee, Mrs. Isabella Fisher.
HOKE, J. (after stating the facts as above).
We have given the record very careful examination, and find no reason for disturbing his honor's judgment. Most of the expenditures objected to were made by order of court first had, or were approved by the court after they were made, and many of them approved also by the administratrix and life tenant, entitled under the will to the income of the property, and some of the more important also by Olivia Maude Fisher, a defendant, one of the children of the testator, after she became of age, and when, by the terms of the will, "she was to have a voice in the management of her father's estate." It was suggested, by way of objection, that the investments have been made in utter disregard of the terms of the will, directing:
"That all moneys not applied or necessary to be spent for my children shall be invested in U.S. securities and, when all arrive at 21, the fund accumulated to be divided," etc.
The will provides that the widow...
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