Lambertson v. Vann
| Decision Date | 18 December 1903 |
| Parties | LAMBERTSON et al. v. VANN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Northampton County; Winston, Judge.
Action by Lucy B. Lambertson and others against Albert Vann executor of the estate of W. A. Lambertson, deceased. From a judgment settling the account, the executor and Lucy B Lambertson and others appeal. Affirmed.
Where the final accounting of an executor was referred, and the referee's findings of fact, objected to, were adopted by the court, such findings are conclusive on the Supreme Court on appeal.
Peebles & Harris, for plaintiffs.
T. W Mason and Gay & Midyette, for defendant.
This action is prosecuted by the widow and children of W. A Lambertson, deceased, against the defendant, as executor, for the purpose of having a construction of the will and for other relief.
Lambertson died in March, 1888, leaving a last will and testament in which he appointed the defendant, Vann, as his executor. The material parts of the will are as follows: In item 2 the testator directs that all the cotton now on the home farm and Clark place, and such other personal property as is not specially exempted from sale by the will, be sold, and the proceeds applied in the due course of administration to the payment of the debts, and distribution afterwards as provided in said will. The testator directs that the horses and mules now on the home place where he lived should be kept on said farm and used in the same manner and for the same purposes as if he were living, said horses and mules not to be sold unless, in the discretion of the executor, it was deemed best for the children. He directs his executor to rent out the children's portion of the land from year to year, and manage the same for the best interests of the children, so long as he is engaged in carrying out the provisions of the will. He gives to his wife, for and during the term of her life, the house and all the outbuildings connected therewith on the home place, together with land enough to constitute one-third in value of his land, to be allotted as dower, and after her death he gives the said land to his children now born, or to be thereafter born, in fee. He gives to his children, Brownie A. and Willie V., all the remainder of the home tract and Clark place not assigned as dower to his wife; and to his afflicted sister, for life, all the interest that he owns in the home place of his father, and after her death to his children in fee. The residue of the property he gives to his wife and children in equal portions. The defendant duly qualified as executor and entered upon the discharge of his duties.
The cause was referred to Walter Daniel, Esq., and he filed his report at fall term, 1897, of the superior court of Northampton county. Among other facts found by him are the following: That the defendant continued to act as executor until 1893, when a receiver was appointed, and the defendant turned over to him the management of the estate and such personal property as was then on hand, for which he took the receipt of the receiver; that the defendant, upon assuming the duties as executor, made an agreement with the widow of the testator to carry on the farming operations upon the land belonging to the estate in the same manner that they had been carried on during the life of the testator, dividing the proceeds upon the basis of one-third to the widow and two-thirds for the benefit of the children; that the farm was operated under said agreement from 1888 to 1892, inclusive, at which time the widow and the executor put an end to the said arrangement, and the executor, during the year 1893, conducted the farming operations on the land belonging to the children in excess of the dower; and that between September 10, 1892, and February 25, 1893, the executor built on the land belonging to the children certain farm buildings and outhouses for which he paid $496.04. The referee finds that this was a necessary expenditure and a permanent improvement, and allows him credit for the same, but allows no commissions thereon.
On December 28, 1892, the executor sold certain personal property, and bid in, for and on account of the children, certain articles to the amount of $690.74. The referee declined to allow him this amount, but does allow him the amount for which said property was afterwards sold by the receiver, to wit, $454.88. The executor filed his annual account of the said estate, and also of his farming operations, and the referee from said account states an account which is incorporated in his report. In his account the referee allows no commissions on certain items fully set forth in the report, nor does he allow interest on certain amounts or commission on amounts paid overseer, nor amount paid for board of overseer, nor on interest thereon.
Upon the facts found, the referee finds the following conclusions of law: That the executor was empowered under the will to conduct and carry on the farming operations; that the widow was entitled to one-third of the net profits of the said farming operations, and certain payments made to her in excess of said profits are charged against her distributive share of said estate, which is ascertained to be one-fourth thereof; that the amount which she owes the executor is not a lien on the estate in his hands belonging to the children that the children are entitled to two-thirds of the net profits up to 1893, and to the whole of the profits for that year (1893), and to three-fourths of the estate in the hands of the executor. He thereupon proceeds to state an account of the dealings of the executor with the estate and of his farming operations, separating the receipts and disbursements from the two sources. He finds a balance...
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