In re Knowles' Estate

• Decision Date: 14 October 1908
• Parties: In re KNOWLES' ESTATE et al.
• Court: North Carolina Supreme Court

62 S.E. 549

148 N.C. 461

In re KNOWLES' ESTATE et al.

Supreme Court of North Carolina

October 14, 1908

Appeal from Superior Court, Sampson County; Neal, Judge.

Petition by B. B. Knowles and others to require Margaret Knowles and another, executors of David J. Knowles, to file an inventory and show cause why they should not give a bond, or, in default thereof be removed. From a judgment of the superior judge affirming the judgment of the clerk dismissing the petition, petitioners appealed. Affirmed.

David J. Knowles, lately domiciled in Sampson county, died on the _____ day of November, 1907, having first made and published his last will and testament, the first item of which is in the following words: "I give, devise and bequeath unto my wife, Margaret Knowles, all my personal property, to use as long as she lives and at her death to be equally divided among my children, my grandchildren Fred Knowles and Leona Knowles to share as one child. Also I give unto my wife during her lifetime, full privilege and control of my land and real estate." In another item he gave all the "rest and residue" of his personal property or real estate to be equally divided between his children and grandchildren. He appointed his wife, Margaret Knowles, and A. W. Knowles executors, etc. The will was duly admitted to probate on the 8th day of November, 1907, and the executors duly qualified. On December 27, 1907, the executors returned to the court an account of sale of a portion of the personal property, which came into their hands from the estate of their testator, amounting to $121.32. On February 15, 1908 the petitioners filed in the superior court a petition alleging that they had an interest in the real and personal property of the testator; that at the time of his death he had a large amount of cash on hand, besides notes and other solvent credits, and a greal deal of personal property, which ought to have come into the hands of the executors; that they had failed to file an inventory, as required by law; that they were insolvent, etc.-praying that they be required to file an inventory, and to show cause why they should not be required to give a justified bond, and, in default thereof, that they be removed. Pursuant to the petition the clerk issued a citation to the executors to show cause, etc. In reply to said notice the executors filed their answer, admitting that certain personal property came into their hands; that they were not concerned, as executors, with any of the personal property, saving and excepting a sufficiency to pay off the debts of the testator, and that they had sold enough for that purpose, and had settled all of the debts, etc.; that under the terms of the will the widow, Margaret Knowles, was given all of the personal property. They deny the right of the petitioners to question their management of the estate. On March 9, 1908, the clerk made an order directing the executors, on or before March 19, 1908, to file an inventory, etc. On said day the executors filed an inventory of the personal property which was delivered to or retained by the widow, under the provisions of the will, consisting of 2 mules, 1 horse, 11 head of cattle, 9 hogs, 1 wagon, a lot of household and kitchen furniture, and some agricultural implements, 20 barrels of corn, 1,000 pounds shucks, 500 pounds fodder, and $580 in money. The money was deposited in the bank to the credit of Mrs. Knowles. They also filed an account, showing the receipt of $121.32 from sale of property, and the payment of $168.68 on account of debts, burial expenses, tombstone, doctor's bill, taxes, attorney's fee, etc. On the hearing the clerk found, upon the evidence and exhibits, that the executors were competent to manage the estate of their testator, and that it had not been squandered or misapplied, and that no fraud had been practiced, or attempted to be practiced. He rendered judgment dismissing the petition and taxing the petitioners with the cost. From this judgment petitioners appealed to the judge, who affirmed the judgment requiring the executors to file in the clerk's office, every four months, a statement of their account, with permission to petitioners, if it appeared that they were wasting the estate, to apply for the appointment of a receiver. From this judgment petitioners appealed.

A testator bequeathed to his wife all his personal property to use for life, and at her death to be divided among others. He also gave to his wife, during her lifetime, full control of his land and real property. In another item he gave all the "rest and residue" of his property to be equally divided among his children and grandchildren. His wife was, at his death, about 73 years old, and the personal property consisted of horses, cows, farm machinery, and household furniture. Held that, in view of the age of the wife and the character of the property bequeathed, it was the intention of the testator that she should have the use of the specific property during her life, and not merely the interest on the proceeds of its sale.

Faison & Wright, for appellants.

Fowler & Crumpler and John D. Kerr, for appellees.

CONNOR J.

We concur with the order made by his honor affirming the action of the clerk. It is settled that the court will not remove an executor by reason of insolvency, when such condition existed at the time the will was executed and was known to the testator, unless it appears that he is wasting or misapplying the assets. Barnes v. Brown, 79 N.C. 401; McFadyen v. Council, 81 N.C. 195. In the absence of any such reason, or any well-grounded apprehension that a devastavit will be committed, a bond will not be required. The clerk in this case finds that the property sold by the executors has been duly accounted for and the debts paid. The accounts filed and made a part of the record sustain the finding. The petitioners, however, insist that, by delivery to the widow of the personal property not sold, including the money on hand, the executors have committed a devastavit. They contend that it was the duty of the executors to have sold the property, and with the proceeds, together with the money on hand, created a fund, to be invested during the lifetime of the widow, paying to her the interest, to the end that, upon her death, the corpus be paid to them. The learned and diligent counsel cited to us a number of cases which he contended sustained his view. It is, of course, the duty of the court, in all cases involving the construction of a will to ascertain and effectuate the...