Knox v. Knox

• Decision Date: 10 April 1935
• Docket Number: 523.
• Citation: Knox v. Knox, 208 N.C. 141, 179 S.E. 610 (N.C. 1935)
• Parties: KNOX v. KNOX et al.
• Court: North Carolina Supreme Court

179 S.E. 610

208 N.C. 141

KNOX v. KNOX et al.

No. 523.

Supreme Court of North Carolina

April 10, 1935

Appeal from Superior Court, Mecklenburg County; Devin, Judge.

Suit by Mrs. Idella W. Knox, individually and as sole executrix of the estate of R. C. Knox, deceased, against Adrian C. Knox executor of the estate of F. J. Knox, deceased, and John W Knox and others, next of kin to F. J. Knox, deceased. From adverse portions of the judgment, all parties, except Adrian C. Knox, executor of the estate of F. J. Knox, deceased appeal.

Affirmed.

Costs of action to obtain construction of will and protect executor were properly taxed against executor.

Trial by jury was waived and this case submitted for decision of the court upon agreed facts, as follows:

"1. That F. J. Knox died on December 27, 1928, leaving a last Will and Testament which was duly probated, and that the defendant, Adrian C. Knox, is sole executor thereof, in the office of the Clerk of Superior Court of said County and State, on December 31, 1928. A copy of said Will is attached to the complaint marked 'Exhibit B.'

2. That the said F. J. Knox, at the time of his death, was the owner and seized and possessed of the property, the proceeds of the sale of which is in controversy in this action.

3. That at the time of his death said F. J. Knox left surviving his widow, Elizabeth A. Knox; that he had four brothers, to-wit: J. A. Knox, Samuel E. Knox, W. A. Knox and T. B. Knox who pre-deceased him and who left surviving the children whose names are set out in the answer of Jno. W. Knox and others filed herein. That the said F. J. Knox died without lineal issue surviving him.

4. That R. C. Knox, one of the two surviving brothers, died on February 9, 1929, leaving a last Will and Testament, which was duly probated; that the plaintiff is the sole executrix and devisee (legatee?) thereof, in the office of the Clerk of said Court, on Feb. 18, 1929, a copy of which Will is attached to the plaintiff's complaint, as 'Exhibit A.' R. C. Knox left no lineal issue surviving.

5. That the defendant, Adrian C. Knox, duly qualified as executor under the Will of F. J. Knox, before the Clerk of Superior Court of said County and State on the 31st day of Dec., 1928, and thereupon entered upon his duty as executor of the said estate. That from the residuary estate of the said testator there came into the hands of said executor total receipts of $17,888, which does not include the proceeds of the sale of property in which the widow of the said testator had a life estate under the terms of the said Will. That the total disbursements from this phase amounted to $8,530.90, leaving a balance in the hands of the executor for distribution under residuary item 18 of the Will, the sum of $9,357.10. That at the date of his death the said F. J. Knox had on hand on deposit in bank and upon certificates of deposit, a total of $3,581.33, and Building and Loan Certificates to the amount of $4,800.00, which item went into the total receipts as above shown. That $9,506.67, the difference between the said total receipts and the said funds in Bank and Building and Loan stock came from dividends on corporate stock, interests from Government securities and miscellaneous items, rents, and proceeds of the sale of the assets of the estate. That no assets of the estate were sold by the executor before January 1, 1931. That in May, 1931, the executor had ready for distribution from the residuary estate other than that in which the testator's widow was given a life estate, the sum of $9,000.00. Of this amount he distributed to J. V. Knox, a brother of the testator, the sum of $1,500, and a like amount to each set of children of the four brothers, who pre-deceased the testator, and left lineal issue surviving, making a total distributed of $7,500.00. The executor was notified by J. V. Knox and representatives of the deceased brothers through their attorney that they claimed the balance of $1,500, and that the plaintiff was not entitled to it, and to hold this amount pending the decision of the Court. The executor, for this reason, withheld the payment thereof and still holds the same pending the decision of the Court as to the owner thereof. That in addition to the $1,500.00 referred to, there is a farm located in Iredell County containing about 192 acres, which has not been sold for the reason that the executor has not been able to make a satisfactory sale thereof and the proceeds of sale of which passes under the said residuary item of said Will.

6. That J. V. Knox, the last surviving brother of F. J. Knox, died on the 8th day of April, 1932, leaving surviving the children as set out in the answer of Jno. W. Knox and others filed herein, together with Adrian C. Knox, who is also a son of J. V. Knox.

7. That Mrs. Elizabeth A. Knox, widow of F. J. Knox, died on or about the 3rd day of September, 1933. That since the date of her death the said Adrian C. Knox, executor, under and pursuant to the terms of the Will of his testator, has sold all of the real estate in which the said Mrs. Elizabeth A. Knox, widow of the said F. J. Knox, had a life estate, with the exception of a vacant lot in or near the Town of Davidson, and of very small value. That there has to date been collected from the sale of property referred to in this paragraph the sum of $17,808.00, which amount, however, is subject to all costs, expenses and commissions, and certain other pieces have been sold but the proceeds not as yet collected, to the amount of $2,133.00.

8. That all of the brothers of F. J. Knox pre-deceased him except R. C. Knox and J. V. Knox. That the said F. J. Knox had no other brothers or sisters who died leaving lineal issue surviving except those referred to in the answer of Jno. W. Knox and others."

"Exhibit A. Last Will and Testament of R. C. Knox.

North Carolina, Mecklenburg County.

I, R. C. Knox, of aforesaid County and State, being of sound mind and considering the uncertainty of my earthly existence, do make and declare this my last Will and Testament.

1st. My Executor, hereinafter named, shall give my body a decent burial, suitable to the wishes of my friends and relatives, and pay all funeral expenses, together with all of my just debts out of the first moneys which may come into her hands belonging to my estate.

2nd. I give and devise to my beloved wife, Idella W. Knox, all my real estate both farming lands and town lots for her natural life.

3rd. I give and bequeath to my said beloved wife all my personal property of every description-that is gin shares, moneys, crops and everything else of personal property.

4th. That at the time of my said beloved wife's death, I give and bequeath to three of my nephews, namely, J. Boyce Knox, W. J. Knox, W. Moffet Knox, my real estate to have, share and share alike that is, each one to have one-third interest.

5th. I hereby constitute and appoint my said beloved wife my lawful executor to execute this my last will and testament without bond.

In witness whereof, I, the said R. C. Knox, do hereunto set my hand and seal this the 16th day of November, 1927.

[Signed] R. C. Knox."

"Exhibit B. Last Will and Testament of F. J. Knox.

North Carolina, Mecklenburg County.

I, F. J. Knox, of the aforesaid County and State, being of sound mind and disposing memory, but considering the uncertainty of my earthly existence, do make and declare this my last Will and Testament.

First: My executor hereinafter named shall give my body a decent burial and erect a suitable monument or tombstone at my grave or last resting place, suitable to the wishes of my friends and relatives, and pay all funeral expenses, together with all my just debts, out of the first moneys which may come into his hands belonging to my estate.

Second: I give, devise and bequeath to my beloved wife, Elizabeth A. Knox, the house and lot, where we now reside in the Town of Davidson, together with all household and kitchen furniture therein; to her I also give Five Thousand ($5,000.00) Dollars, face value of my North Carolina State Bonds; my (8) eight shares of stock in the Davidson Cotton Mills; my preferred stock Three Thousand ($3,000.00) Dollars in the Mooresville Cotton Mills; all my shares of stock in the Cornelius Cotton Mills; all my shares of preferred stock in the Cascade Mills at Mooresville; also Two Thousand ($2,000.00) Dollars, face value of my United States Government Bonds; to her I also give the two-story brick building on Main Street in Davidson, N.C. now occupied by M. H. Goodrum & Co. Hardware Department; all the foregoing are given in fee, with full right and privilege and power granted to my said wife to use and dispose of as she sees fit. And in order that my said wife shall have all the things useful and necessary for her comfort during the remainder of her natural life; I give and bequeath to her the use and benefit of the rents and profits of all my other real estate within the corporate limits of the Town of Davidson, N. C., and also the Fifty (50) Acres of land in Deweese Township, Mecklenburg County, North Carolina, known as the Hall tract-upon the death of my said wife, the property mentioned in this paragraph not disposed of in fee shall revert to my executor and be by him disposed of as hereinafter provided.

Third: I give, devise and bequeath to Jay Knox, and Melvin Knox, sons of my deceased brother, T. B. Knox, the two houses and lots in the Town of Cornelius, known as the Mooney property on Mulberry Street; Jay to have the one now occupied by a Mr. Pless, and Melvin to have the one now occupied by a Mr. McCloud.

Fourth I give, devise and bequeath to my brother, J. V. Knox, Five Hundred ($500.00) Dollars, face value of my United States Government...