In re Wright's Estate

• Decision Date: 15 April 1931
• Docket Number: 334.
• Citation: 158 S.E. 192,200 N.C. 620
• Parties: In re WRIGHT'S ESTATE. v. BALL et al. WRIGHT et al.
• Court: North Carolina Supreme Court

158 S.E. 192

200 N.C. 620

In re WRIGHT'S ESTATE.

WRIGHT et al. v. BALL et al.

No. 334.

Supreme Court of North Carolina

April 15, 1931

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

Consolidated actions by R. H. Wright, Jr., and another, executors of the last will and testament of R. H. Wright, deceased, against M W. Ball, administrator with the will annexed, and others, and proceeding by M. W. Ball, administrator with the will annexed, for the removal of said executors. From a judgment affirming the clerk's order removing the executors and administrator with the will annexed, reversing an order appointing administrators de bonis non with the will annexed and appointing a receiver to settle the estate, the administrator with the will annexed and others appeal.

Affirmed.

Superior court clerk's order removing executors held reviewable on appeal to judge (C.S. § 1; C.S.Supp.1924, §§ 31, 4139).

Proceeding before clerk to remove executors, consolidated, without objection with action to construe family agreement, may be regarded as motion in civil action for purpose of superior judge's jurisdiction on appeal.

The above-entitled causes, pending in the superior court of Durham county, before the clerk, were, without objection consolidated for the hearing of a motion for the removal of R. H. Wright, Jr., and T. D. Wright, as executors of the last will and testament of R. H. Wright, deceased.

On the facts found by the clerk at said hearing, R. H. Wright, Jr., and T. D. Wright, who had theretofore duly qualified before said clerk as executors of the last will and testament of R. H. Wright, deceased, and M. W. Ball, who had theretofore been appointed by and had qualified before said clerk as administrator c. t. a., of the said R. H. Wright, deceased, were removed from their respective offices, and S. C. Brawley, J. O. Lunsford, and Victor Young were appointed by the said clerk as administrators de bonis non, cum testamento annexo, with directions to take charge of the estate of R. H. Wright, deceased, and to administer the same as provided by law.

R. H. Wright, Jr., and T. D. Wright, executors, and certain devisees and legatees of the said R. H. Wright, deceased, appealed from the orders of the clerk to the judge of the superior court of Durham county. This appeal was heard by Judge Grady, holding the superior courts of Durham county, at Clinton, N. C., by consent, on December 23, 1930.

On December 24, 1930, Judge Grady rendered judgment affirming the order of the clerk removing the said executors and administrator, c. t. a., reversing the order appointing the said administrators d. b. n., c. t. a., and appointing the First National Bank of Durham receiver of the estate of R. H. Wright, deceased, with full power and authority to settle the said estate, in accordance with the stipulations of the "Family Agreement," executed by all the devisees and legatees of R. H. Wright, deceased, and under the orders and supervision of the judge of the superior court of Durham county.

From this judgment, M. W. Ball, administrator c. t. a., and certain devisees and legatees of R. H. Wright, deceased, appealed to the Supreme Court.

Abernethy & Abernethy, of Newbern, and Brawley & Gantt, of Durham, for appellants.

Brooks, Parker, Smith & Wharton, of Greensboro, and W. B. Umstead, of Durham, for appellees R. H. Wright, Jr., and T. D. Wright, executors, and others.

S. C. Chambers, of Durham, for appellee Cora Wright Chambers.

Walter Clark, of Charlotte, for appellee Nannie Wright Clark.

CONNOR J.

The last will and testament of R. H. Wright, who died in Durham county, N. C., on March 4, 1929, was probated in common form by the clerk of the superior court of said county soon after the death of the testator. Thereafter, on or about June 1, 1929, a caveat was filed in the office of said clerk to the probate of said last will and testament. The issues raised by the said caveat were duly tried at October term, 1929, of the superior court of Durham county. At this trial the issues were answered by the jury in accordance with the contentions of the propounders. It was thereupon adjudged by the court that the paper writing propounded, with the exception of certain items contained therein, which were adjudged void, is the last will and testament of R. H. Wright, deceased, and is valid as such. In accordance with the petition of both the caveators and the propounders, duly filed in the caveat proceeding for a construction by the court of said last will and testament, it was further ordered, adjudged, and decreed that under its provisions, Miss Mary E. Wright, a sister of the testator, is the owner of an estate for the term of her natural life in all the property, real and personal, of every kind and description, owned by the testator at the date of his death; that the children of T. D. Wright, a deceased brother--six in number--are the owners of a vested remainder in an undivided two-thirds interest in all of said property, subject to the life estate of Miss Mary E. Wright; and that Mrs. Lucy W. Ball, a sister of the testator, is the owner of an undivided one-third interest in all of said property, subject to the life estate of Miss Mary E. Wright. It was also adjudged that R. H. Wright, Jr., T. D. Wright, and the First National Company, Inc., of Durham, N. C., who are named in said last will and testament as executors thereof, are the duly qualified executors of R. H. Wright, deceased.

Thereafter, by an agreement in writing, executed by Miss Mary E. Wright, by all the children of T. D. Wright, deceased, and by Mrs. Lucy W. Ball, and her children and grandchildren, dated November 5, 1929, and known as the "Family Agreement," it was agreed that the estate of R. H. Wright, deceased, should be divided and distributed in accordance with the stipulations of said agreement, and not in accordance with the provisions of the last will and testament of R. H. Wright, deceased. It was expressly agreed by all parties to said "Family Agreement" that the First National Company, Inc., of Durham, N. C., should resign as executor and trustee under the will, and that M. W. Ball, a son of Mrs. Lucy W. Ball, should be appointed by the clerk of the superior court of Durham county as administrator c. t. a. of R. H. Wright, deceased, and that the said estate should be managed, divided, and distributed by R. H. Wright, Jr., and T. D. Wright, the executors named in the will, and M. W. Ball, administrator c. t. a., appointed by the clerk, in accordance with said "Family Agreement." The purpose and effect of this stipulation was to constitute R. H. Wright and T. D. Wright, the representatives in the management and settlement of said estate of the "Wright Group," owners of two-thirds of said estate, and M. W. Ball, the representative of the "Ball Group," owners of one-third of said estate.

Subsequent to the execution of the "Family Agreement," and in accordance with its stipulations, the First National Company, Inc., of Durham, N. C., resigned as executors and trustee under the will of R. H. Wright, deceased, and M. W. Ball was appointed by the clerk of the superior court of Durham county administrator c. t. a. of R. H. Wright.

Thereafter, R. H. Wright, Jr., T. D. Wright, and M. W. Ball, entered upon the discharge of their duties, and were engaged in the management and settlement of the estate of R. H. Wright, in accordance with the stipulations of the "Family Agreement," at the date of the commencement of the action entitled "R. H. Wright, Jr., and T. D. Wright, Executors, v. M. W. Ball, Administrator, C. T. A. and Others, Devisees and Legatees of R. H. Wright, Deceased." In the petition filed in this action by R. H. Wright, Jr., and T. D. Wright, executors, it is alleged that serious and apparently irreconcilable differences in opinion as to policies to be pursued in the management and settlement of the estate have arisen between the said R. H. Wright, Jr., and T. D. Wright, executors, of the one part, and M. W. Ball, administrator c. t. a., of the other part. The relief sought in the action is a construction by the court of certain stipulations in the "Family Agreement," and advice as to the proper management and settlement of the estate. All persons who have an interest in the estate of R. H. Wright, deceased, either under his last will and testament, or under the "Family Agreement," are defendants in the action. An answer was filed to the petition by M. W. Ball, administrator c. t. a., and by certain defendants, who constitute the "Ball Group." They pray that the prayer in the petition be denied, and the action be dismissed. An answer was also filed to the petition by defendants who constitute the "Wright Group." They admit the allegations of the petition, and pray the court to make such order or orders as may be just and proper. This action was begun on October 6, 1929.

On October 7, 1930, M. W. Ball, as administrator c. t. a., filed his petition before the clerk of the superior court of Durham county, alleging certain facts on which he prayed the said clerk to remove R. H. Wright, Jr., and T. D. Wright as executors of R. H. Wright, deceased, and to recall and revoke the letters testamentary theretofore issued to them by said clerk. In his petition, the said M. W. Ball states that if the clerk will remove the said executors in accordance with his prayer therein, he will resign as administrator c. t. a ""so that some disinterested, capable and competent person or trust company may be appointed to administer and settle said estate, which your petitioner believes and alleges will be to the best interest of all parties concerned." Answers were filed to this petition by the executors, as respondents, and also by members of the "Wright Group," who...