Fisher v. Southern Loan & Trust Co.

• Decision Date: 18 April 1905
• Citation: 50 S.E. 592,138 N.C. 90
• Parties: FISHER et al. v. SOUTHERN LOAN & TRUST CO. et al.
• Court: North Carolina Supreme Court

50 S.E. 592

138 N.C. 90

FISHER et al. v. SOUTHERN LOAN & TRUST CO. et al.

Supreme Court of North Carolina

April 18, 1905

Appeal from Superior Court, Guilford County; Bryan, Judge.

Administration suit by Isabella Fisher, administratrix of B. J. Fisher deceased, and others, against the Southern Loan & Trust Company and others. From the judgment rendered, defendants appeal. Modified.

Parties interested, as administratrix, legatees, creditors, etc., in the administration of an estate consisting largely of real estate heavily incumbered, the personal property of which is insufficient to pay interest on the incumbrances or meet the expenses of the widow and family of deceased, and the realty belonging to which is in danger of being lost by mortgage foreclosure, are entitled to the aid of the court in protecting the property by the appointment of a receiver, the adjustment of conflicting claims, and the sale of the property on the most advantageous terms.

This action, in the nature of a bill in equity, was originally instituted at February term, 1904, of the superior court of Guilford by plaintiff, as administratrix of B. J. Fisher and certain creditors, against the children and heirs at law of her intestate. The plaintiffs named in the summons, other than the administratrix, declining to permit the use of their names or to prosecute the action, were by an order made in the cause at the same term made parties defendant, and there was an order that summons issue to them, returnable to the next term. Thereafter, it appearing that summons had been duly served on the infant defendants without general guardian, E. J. Justice, Esq., was duly appointed guardian ad litem of said infants. At the February term, 1904, the plaintiff administratrix filed her complaint against the infant defendants, setting forth: That B. J. Fisher died on April 15, 1903, in the city of New York; leaving a last will and testament, which was duly admitted to probate before the surrogate of New York county. That said Fisher devised his entire real and personal estate to his wife, the plaintiff for life; remainder to his children, the infant defendants. That the executor named in said will renounced his right to qualify, and the plaintiff was duly appointed administratrix with the will annexed. That thereafter said will was duly admitted to probate before the clerk of the superior court of Guilford, and the plaintiff was duly appointed and qualified as administratrix with the will annexed in this state. That said Fisher was at the time of his death the owner of much valuable real estate in and adjacent to the city of Greensboro, in said county and state, a full description of which is set out in the complaint. That said real estate was incumbered with large indebtedness, secured by mortgages and deeds of trust, amounting to about $45,000, much of which was past due, including unpaid interest. That the rents accruing from said real estate amount to about $3,000 per annum. That said Fisher left but a small quantity of personal estate--entirely insufficient to pay even the interest on his debts. That the plaintiff and her children, the infant defendants, resided in the city of New York; the ages of said children ranging from 8 to 18 years. That the plaintiff had no means of support other than the estate of said Fisher. That one of the creditors, holding a mortgage on a part of said real estate securing an indebtedness of $10,000 demanded payment of his debt, and threatened to foreclose his mortgage. That other creditors, having deeds of trust demanded payment of interest. That, if said mortgages and deeds of trust were foreclosed, property of the value of more than $1,000,000 would be sacrificed to pay an indebtedness of less than one-half that amount. That, by reason of plaintiff's residence in New York, and the attention demanded by her family, it was impracticable for her to give proper attention to said real estate. That she was advised that she could not sell the real estate without the orders of the court. That she had no means with which to pay the indebtedness of her late husband, otherwise than by a sale of said real estate. That she desired the appointment of a receiver, with power to take charge of and administer the said real estate, and to protect the interests of the plaintiffs and defendants, as well as the creditors and mortgagees. That said receiver be empowered to lay off a portion of said unimproved real estate into lots, to advertise the same for sale, to sell the buildings, and do all such other things necessary and proper in the premises. That A. L. Brooks, Esq., being attorney for said estate, and plaintiff's trusted legal adviser, would be a proper person to name as receiver, etc. This complaint is not verified. The guardian ad litem at the same term filed his answer, admitting all of the allegations in the complaint, and joining the plaintiff in her prayer that a receiver be appointed. This answer was filed February 25, 1904, unverified. That at said term an order was made appointing A. L. Brooks, Esq., commissioner and receiver of both real and personal estate situate in the county of Guilford belonging to the estate of said Fisher; to manage, control, and direct the affairs of same; to survey and lay off unimproved real estate; to advertise and sell same either at public or private sale, and to sell at public or private sale the Planters' Hotel. "That if, for any reason, sales of sufficient property cannot be made to satisfy the outstanding interest and principal indebtedness which creditors may demand the payment of, then and in that event the said receiver is hereby authorized, empowered, and directed to borrow such sum or sums of money as may be necessary to satisfy such claims, and to execute and deliver to the lender receiver's certificates or notes, and to secure the same, if desired by such lender, by executing a mortgage or mortgages upon any and so much of the property belonging to the estate of the said B. J. Fisher as may be necessary for such purpose. That the said commissioner and receiver is hereby authorized and empowered to collect and receive any and all rents, obligations, and dues owing and belonging or hereafter becoming due to the said estate, and to execute receipts therefor; to make report to this court of all sales of land and loans secured by him, either in term or at chambers; and to execute deeds therefor, or receiver's certificates and notes, as the case may require. And the said commissioner and receiver is hereby further directed, within sixty days from this term of court, to advertise for all parties holding claims against the same to make proof thereof for payment, and that the commissioner and receiver herein appointed shall from time to time make report to this court, either at chambers or at the term, of all his dealings and transactions with the said estate; and this cause is retained for further orders and direction."

On the 3d day of March, 1904, the plaintiff, in her own behalf, filed a petition in the cause, setting forth that she lived with her husband and their children in the city of New York; that at the time of his death her husband owned no personal estate except furniture; that they had lived under the impression that her husband was a wealthy man, and their expenses were in keeping with such impression; that her children were attending school in New York, and that to maintain them in the social condition in which they lived required considerable income; that one of her children is an invalid; that they had no income whatever; that since the death of her husband she had paid out of her personal estate an indebtedness against her husband, secured by mortgage, of over $5,000; that she had also paid funeral expenses, attorney's fees, support of herself and children, amounting in all to $8,250; that she is now in need of money with which to maintain and support her family, and is compelled to have money from the estate of her husband for such purpose, etc. She prays that the receiver be directed to issue to her a receiver's certificate for $8,250. She files with her petition a statement showing the purposes for which said expenditures were made, doctor's bill, funeral expenses, mourning clothing, attorney's fees, mortgage debt, etc. That thereupon and at the same time the said receiver filed the following petition: "I beg leave to call the court's attention to the annexed petition and affidavit of Isabella Fisher and W. S. Jessup, showing that Mrs. Fisher has advanced to the estate of the late B. J. Fisher, out of her separate personal estate, over nine thousand dollars, of which she desires to be repaid, and also the urgent necessity for some money provision for the maintenance and support of herself and children, and for the education of her children. The petitioner desires that the court direct him, as commissioner and receiver, to issue to her a receiver's certificate for $8,250 upon said claim. If the court shall be of opinion that such an order should be made, and that I, as receiver, *** should so execute a certificate for said amount, I respectfully request that the court will direct me in the premises, as it may appear to be just," etc. Whereupon, on March 10, 1904, an order was made reciting the facts set forth in said petition, and directing "that A. L. Brooks, receiver," etc., "be, and is hereby, directed to issue to said Isabella Fisher a receiver's certificate against the property of the estate of the late B. J. Fisher in the sum of $8,250, and deliver the same to her, and of his actions *** make report to the next term of the superior court of Guilford, or *** at chambers in the meantime, should such a course be necessary."

On August 19, 1904, plaintiff filed her complaint against ...