In re Wright's Estate

• Decision Date: 05 April 1933
• Docket Number: 349.
• Citation: 168 S.E. 664,204 N.C. 465
• Parties: In re WRIGHT'S ESTATE. v. BALL et al. WRIGHT et al.
• Court: North Carolina Supreme Court

168 S.E. 664

204 N.C. 465

In re WRIGHT'S ESTATE.

WRIGHT et al. v. BALL et al.

No. 349.

Supreme Court of North Carolina

April 5, 1933

Appeal from Superior Court, Durham County; Small, Judge.

Proceeding in the matter of the R. H. Wright Estate, by T. D. Wright and another, executors, and others against M. W. Ball and others. From the judgment, M. W. Ball and others appeal.

Reversed.

Under family agreement providing that remainder of testator's estate should be distributed one-third to heir and two-thirds to trustee in trust for life tenant, income from realty devised for life with remainder over, held distributable one-third to heir and two-thirds to life tenant, and did not remain property of life tenant under will.

See also, 200 N.C. 620, 158 S.E. 192; 168 S.E. 666, 667.

The findings of facts and judgment of the court below are as follows:

"This cause coming on to be heard before Honorable Walter L Small, Judge presiding and holding the courts of the Tenth Judicial District, and being heard at Durham, in said District, on the 2nd day of March, 1933, upon the pleadings and the evidence offered by the parties, a jury trial having been waived, the Court finds the following facts:

"1. That R. H. Wright died on March 4, 1929, leaving a last will and testament which was admitted to probate in common form in Durham County, a copy of said will being attached to the petition of the Durham Loan & Trust Company, Receiver, in this cause and made a part of these findings of fact.

"2. That a caveat to the Will of R. H. Wright was filed in the Superior Court of Durham County, and on the 19th day of November, 1929, a judgment was entered in said cause by Honorable E. H. Cranmer, Judge presiding, a copy of said judgment being attached to the petition of the Receiver filed in this

cause, and it is hereby made a part of these findings of fact.

"3. That prior to the rendition of said judgment passing upon the validity of said will, and construing the same, all the heirs at law and next of kin of the said R. H. Wright deceased, entered into an agreement referred to as the 'family agreement,' dated November 5th, 1929, for the purpose of determining the method of administration of the estate and its ultimate division among the parties to said agreement. A copy of said agreement is also attached to the petition of the receiver in this cause and is hereby made a part of these findings of fact.

"4. That after the execution of said agreement, the executors named in the will of R. H. Wright, Sr., were removed and the First National Bank of Durham, North Carolina, was appointed Receiver of said estate. That on the 18th day of January, 1932, the said First National Bank of Durham suspended business and on January 29, 1932, the Durham Loan & Trust Company was appointed Receiver of said Estate, and is now acting as such.

"5. That several months after the execution of the 'family agreement', the question arose between the representatives of Mrs. Lucy W. Ball, owning a one-third interest in the estate, and the representatives of Miss Mary E. Wright, the life tenant in two-thirds, and the children of T. D. Wright, the owner of the remainder of the two-thirds interest, as to the distribution of certain income derived from the property of the estate in the interval between March 4, 1929, and the date of the 'family agreement,' November 5, 1929. That without prejudice to the rights of either group, this income, about which the controversy arose, to-wit: $21,620.95, was distributed, one-third to the Ball group and two-thirds to the Wright group, it being agreed that the question as to how said income should be distributed was to be finally passed upon by the Superior Court of Durham County.

"6. That Miss Mary E. Wright, the life tenant, died on the 16th day of June, 1932, leaving a last will and testament which has been duly admitted to probate in Durham County, in which will T. D. Wright and R. H. Wright are named as executors, and each of them have qualified and are now acting as such.

"7. That the executors of the last will and testament of R. H. Wright pened an account upon their books as such executors entitled 'R. H. Wright and T. D. Wright, Agents of Mary E. Wright,' and on said account they credited all income collected from the real estate of the R. H. Wright estate between the dates March 4, 1929, and November 5, 1929, and on the latter date, the total amount of said income was $21,620.95. That no part of said amount came from any source except the real estate which, by the last will and testament of R. H. Wright, was devised to Miss Mary E. Wright for her life.

"That during said period the executors likewise kept a separate account on their books of the income from personal property, but the money received by them from both sources was deposited in one bank account. The item of $2,402.25 referred to in sub-section (d), section 2, of the family agreement was paid by the executors out of the commingled income bank account and was set up on the books of the executors as an advancement to her.

"8. That upon the appointment of the First National Bank of Durham, N. C., as Receiver of the estate of R. H. Wright, it was duly notified of the claim of Miss Mary E. Wright to the entire amount of $21,620.95, and thereafter, upon the appointment of the Durham Loan & Trust Company, as Receiver of said estate, it was likewise notified of such claim. That the estate of R. H. Wright was at the time of his death and still is amply solvent.

"9. That the Ball group contend that under the terms of the

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