In Re Hege.

• Citation: 172 S.E. 345,205 N. C. 625
• Decision Date: 10 January 1934
• Docket Number: No. 562.,562.
• Court: United States State Supreme Court of North Carolina
• Parties: In re HEGE. In re STEVENSON'S ESTATE.

172 S.E. 345

205 N. C. 625

In re HEGE. In re STEVENSON'S ESTATE.

No. 562.

Supreme Court of North Carolina.

Jan. 10, 1934.

Appeal from Superior Court, Forsyth County; Sink, Judge.

Habeas corpus by George O. Hege, executor of the estate of Emma A. Stevenson. From the order therein, petitioner appeals.

Reversed and remanded.

The clerk of the superior court of Forsyth county, on February 16, 1933, adjudged the respondent, George O. Hege, guilty of contempt, and ordered him to be committed to the common jail of Forsyth county. The clerk in part rendered the following judgment: "In its discretion the Court refused to accept the report tendered for the reason that it is not sufficient according to law, and the Court finds as a fact that George O. Hege, is in direct contempt of this Court and adjudged the said George O. Hege, respondent, in direct contempt of court: and the Court finds as a fact that he has willfully disobeyed the orders of this Court in refusing to file report in accordance with its orders and he still willfully refuses to file report as executor of the estate of Emma A. Stevenson, deceased, as heretofore directed in an order of this Court. It is, therefore, ordered and adjudged that George O. Hege be and he is hereby committed to the common jail of Forsyth County until he exhibits and files report as executor of the estate of Emma A. Stevenson, deceased, according to law and exhibits with said report vouchers and receipts as the law directs to support disbursements shown therein. This February 16, 1933."

The record discloses that: "On February 25th, 1933, respondent was again brought before the clerk and Mr. P. N. Parrish (Clerk's auditor), and minor corrections made after which respondent made out and tendered a new report in accordance with said auditor's report. Copies of said report were mailed to all interested parties by the clerk. After which R. C. Rights, Dora Rights, Louis Rights and Mary Lineback, filed protest against the clerk allowing commissions. A date was set for hearing on said protest and at said hearing no one appearing to substantiate said protest; the respondent moved to dismiss same and approve the report Motion denied and respondent excepted."

The respondent sued out a writ of habeas corpus before Sink, J., and among other findings before him is the following: "That the said Geo. O. Hege, executor of the estate of Emma A. Stevenson, deceased, was committed to the common jail of Forsyth County by W. B. Church, Clerk of the Superior Court, upon an order and finding of facts, February 10th, 1933; that the said finding of facts are adopted by this Court and found to be the facts pertaining to the said commitment by the Clerk of the Superior Court and are made a part of this judgment. (4) That upon the matter coming on to be heard the respondent filed an affidavit in the said cause (following and marked Exhibit A) a copy of which is attached hereto and made a part of this judgment. That in Addition to the finding of facts by the clerk and the findings herein contained the Court further finds as a fact that the said Geo. O. Hege did file with the Clerk of the Superior Court a report purporting to be a final report as executor of the estate of Emma A. Stevenson, deceased, which report the Court finds contained figures which were acceptable to the Clerk of the Superior Court if and when settlement in accordance with the said figures is made; that the respondent admitted that he had not made settlement with the Clerk of the Superior Court in accordance with terms of the figures contained in the report presented by him to the said clerk. It is, therefore, considered, ordered and adjudged, that Geo. O. Hege, be and is herebyremanded to the common jail of Forsyth County under the terms of the commitment of W. E. Church, Clerk of the Superior Court, there to remain until he complies with the orders of the said clerk or is otherwise discharged according to law."

The record discloses that the respondent was dilatory for some period of time in making his return, after repeated notices by the clerk. The respondent contended "that he has over-paid seven heirs more than enough to finish paying the remaining three, and the inheritance tax"; that the clerk refused to allow him commission, $804.63, although the estate was in litigation for two years and was benefited by same; that the clerk required him to be chargeable with certain interest which was incorrect, on inheritance tax amount to $106.28.

"Analysis of report referred to in paragraph 4 of Judge Sink's findings of facts; as compiled from said report and the report of auditor:

                -----------------------------------
                |Total amount of assets|$11,424.31|
                |----------------------|----------|
                |Total collections     |$13,797.77|
                |----------------------|----------|
                |Total disbursements   |6, 214.22 |
                |----------------------|----------|
                |                      |$ 7.5S3.55|
                -----------------------------------
                

to be equally divided between ten heirs, which would be equal to $758.35 each.

"Report shows that the estate was in litigation until March 28th, 1928.

"The following distribution made to heirs between December 1st, 1925, and September 28th, 1928:

                ------------------------------------------------------
                |                           |       |Paid   |Overpaid|
                |---------------------------|-------|-------|--------|
                |Annie Mock, due 1 share.   |$758.36|$818.09|$ 59.73 |
                |---------------------------|-------|-------|--------|
                |Louis Rights, due 1 share  |$758.36|813.00 |54.64   |
                |---------------------------|-------|-------|--------|
                |R. C. Rights, due 1 share. |758.36 |818.09 |69.73   |
                |---------------------------|-------|-------|--------|
                |Will Rights, due 1 share.  |$758.36|818.09 |59.73   |
                |---------------------------|-------|-------|--------|
                |Mary Lineback, due 1 share |758.36 |793.09 |34.73   |
                |---------------------------|-------|-------|--------|
                |Agnes Rights, due 1 share  |$758.36|817.89 |59.57   |
                |---------------------------|-------|-------|--------|
                |Dora Rights, due 1 share.  |758.36 |818.09 |59.73   |
                |---------------------------|-------|-------|--------|
                |                           |       |       |Unpaid  |
                |---------------------------|-------|-------|--------|
                |Arthur Jenkins, due 1 share|$758.36|700.00 |58.36   |
                |---------------------------|-------|-------|--------|
                |Lizzie Jenkins, due 1 share|$758.36|700.00 |58.36   |
                |---------------------------|-------|-------|--------|
                |Daisy Jenkins, due 1 share |$758.36|700.00 |58.36   |
                ------------------------------------------------------
                

All of above paid to heirs prior to January 1st, 1929.

Leaving due:

Inheritance Tax................$272.46

Clerk of Court auditing and filing 16.35

"The following heirs joined in filing protest referred to in proceeding before the Clerk: Annie Mock, R. C. Rights, Louis Rights, and Mary Lineback."

From the above report $7,583.60 was due the heirs, and they were overpaid $562.94. It will be noted that four of the heirs who were overpaid filed a protest, also that those heirs who filed protest against the clerk allowing commissions did not appear to substantiate the protest.

The record further shows an affidavit by respondent (Exhibit A referred to by Judge Sink) that in part says: "Deponent therefore disavows any intent to be in contempt of court or any of its officers, that he diligently and faithfully tried to the best of his ability to...