In Re Poindexter's Estate.
| Decision Date | 06 May 1942 |
| Docket Number | No. 460.,460. |
| Citation | 221 N.C. 246,20 S.E.2d 49 |
| Court | North Carolina Supreme Court |
| Parties | In re POINDEXTER'S ESTATE. |
Appeal from Superior Court, Wake County; W. C. Harris, Judge.
Proceeding in the matter of the estate of Dabney T. Poindexter, deceased, wherein Mary P. Watts and another, administrators, filed a petition for advice and instruction. From the judgment, certain respondents appeal.
Affirmed.
Petition by administrators for advice and instruction.
Dabney T. Poindexter, formerly a resident of Wake County, died intestate February 19, 1941. Petitioners Mary P. Watts and Willis Smith duly qualified as administrators and entered upon the administration of the decedent's estate as such. The administrators have in hand money and personal property of the value of more than $500,000. They are now ready and have been authorized by the clerk to distribute $140,000 thereof.
The intestate left surviving no widow or children or legal representative of deceased children. Two sisters survive. He also had three brothers and two sisters who predeceased him. Each brother and sister left lineal descendents surviving. Lula Poindexter Brown, a deceased sister, left surviving two children and four grandchildren by one son and two grandchildren by another son. R. N. Poindexter, a deceased brother, left surviving two daughters. John S. Poindexter, a brother, left surviving one son and two daughters. Hugh Poindexter, a deceased half brother, left one son surviving, and Betty P. Gills, a deceased half sister, left surviving four daughters and one son.
Conflicting claims as to the fractional share due each distributee having arisen, the administrators filed this petition for advice and instruction as to the proper method of distribution. When the cause came on to be heard in the court below judgment was entered directing that the personal estate to be distributed be divided into seven shares; that one share be allotted to each of the surviving sisters; that one share be allotted to the representatives of Lula Poindexter Brown; and one share to the representatives of each of the other deceased brothers and sisters. The judgment further provided that the children of a deceased child of a brother or sister should receive the share to which his parent would be entitled if living. The ratable portion of each distributee is set out in detail.
Certain of the nephews and nieces and grand nephews and grand nieces excepted and appealed.
J. C. Little, Jr., of Raleigh, for children of Lula Poindexter Brown, deceased, appellants.
J. L. Fountain, of Raleigh, for representatives of Betty P. Bills, deceased, appellants.
Killian Barwick, of Raleigh, for grandchildren of Lula Poindexter Brown, deceased, appellants.
Oscar Leach and John H. Anderson, Jr., both of Raleigh, for petitioners-appellees.
W. C. Harris, Jr., of Raleigh, for certain defendants-appellees.
Petitioners have adopted the proper procedure for obtaining judicial direction as to the method of distribution of the personal estate of their intestate. Commercial Nat. Bank v. Alexander, 188 N.C. 667, 125 S.E. 385; In re Estate of Mizzelle, 213 N. C. 367, 196 S.E. 364.
When the personal estate of an intestate is to be distributed under the provisions of C.S. § 137, subsection 5, among living sisters and the representatives of deceased brothers and sisters, is the distribution to be per capita or per stirpes? This is the question appellants present by their appeal.
The question is answered in part by the claimants. They all concede that as to the two surviving sisters the distribution is to be per capita. This is in accord with the decisions of this court. Ellis v. Harrison, 140 N.C. 444, 53 S.E. 299; In re Estate of Mizzelle, supra; Nixon v. Nixon, 215 N.C. 377, 1 S.E.2d 828; Skinner v. Wynne, 55 N.C. 41; Nelson v. Blue, 63 N.C. 659.
The appellants contend, however, that the nephews and nieces are related in equal degree and that as to the five-sevenths of the estate to be shared by representatives of deceased brothers and sisters of the intestate the distribution should be per capita also and not per strirpes.
Hence, there is no dispute as to who takes. The controversy is as to the relative proportions due each distributee, other than the two sisters.
This contention cannot be sustained. It apparently is founded upon a misconception of the language of the statute. It is not sufficient that these claimants are related to each other in equal degree. To take in their own right they must be among the nearest of kin of deceased. As two sisters survive this requirement is not fulfilled.
The pertinent statute (C.S. § 137, subsection 5) is properly divisible into two parts: (1) the estate shall be distributed equally to every of the...
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...the canons of descent, where the beneficiaries take as representatives of an ancestor, they take per stirpes. In re Poindexter's Estate, 221 N.C. 246, 20 S.E.2d 49, 140 A.L.R. 1138. But, when they take directly under a bequest, or devise, as individuals and not in a representative capacity,......
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