Latham v. Latham

• Decision Date: 20 September 1922
• Docket Number: 31.
• Citation: 113 S.E. 623,184 N.C. 55
• Parties: LATHAM ET AL. v. LATHAM ET AL.
• Court: North Carolina Supreme Court

113 S.E. 623

184 N.C. 55

LATHAM ET AL. v. LATHAM ET AL.

No. 31.

Supreme Court of North Carolina

September 20, 1922

Appeal from Superior Court, Beaufort County; Bond, Judge.

Action by A. C. Latham and others against S.W. Latham, on whose death pending the action Mrs. Carrie Hancock and others, his executrix and heirs and devisees, were made defendants. From judgment of dismissal, plaintiffs appeal. Affirmed.

The active trust, created by devise to collect income and apply it to support of L. and family during L.'s life, and then to convey the estate to L.'s child, became passive at L.'s death, and from then the children and trustee would be in adverse relation to each other, putting in motion the statute of limitations against demand for an accounting by the trustee.

The action was instituted in said county on October 10, 1916, by plaintiffs, certain grand-children of Fred P. Latham deceased, successors in title to the pro rata rights and interests of A. C. Latham, Josephine Potts, and Henrietta Tripp, all now deceased, and who took and hold their rights as among the devisees and heirs at law of said F. P. Latham against S.W. Latham, executor of the will of F. P. Latham and trustee of certain portions of the real estate under said will.

Subsequent to the institution of the suit, defendant S.W. Latham executor, died, and by order duly entered his executrix and heirs at law and devisees under his will have been made parties defendant. On matters more directly pertinent to the questions presented, the original complaint alleges:

"That Frederick P. Latham, late of the county of Craven, N. C., died on the 3d day of October, 1866, leaving a last will and testament, which will was duly proven in open court and in due form of law and recorded in the office of the clerk of the superior court of Craven county. By the terms of said will he devised to the defendant Saml. W. Latham, the following real estate, to wit: 'The plantation whereon my son, Alex C. Latham now resides, containing 820 acres, which comprises all of the land which I acquired by descent from, and by purchase from the heirs at law of Rufus W. Latham, together with certain personal property therein named, the said devise being contained in item 3 of said will, to hold the said land and personal estate upon the following uses and trusts, that is to say, that the said Saml. W. Latham shall from year to year collect and receive the rent hires, interest and benefits of all the said estate comprised in this clause, and shall equally pay out and appropriate the same for the maintenance and support of my son, Alex C. Latham, and his family, during the natural life of the said Alex C. Latham, then in trust to convey the said estate in absolute property to such child or children (or the representatives of such as may be dead) of the said Alex C. Latham as may him survive.' By the terms of item 8 of said will, Fred P. Latham made the following devise: 'After the death of my wife, all the estate described in the first clause of my will and given to my wife for life, except such as has been heretofore disposed of, I give and bequeath to be equally divided between my four daughters, Mary Eliza Hancock, Pauline Whitehurst, Henrietta Tripp and Josephine Potts, the share of said Josephine Potts to be held in trust by my son, Saml. W. Latham for the sole and separate use of said Josephine Potts, discharged from all the liabilities of said husband, Wm. Potts.' A copy of the said will is hereto attached, and marked Exhibit A and made a part hereof as much so as if pleaded in full.

(2) That by the terms of the said will and item 9 thereof, the said Fred P. Latham, deceased, directed his executors to make sale of certain personal property and also certain land on South creek and on the Sand Hills and also certain perishable estate for the purpose of paying his debts, and appointed his two sons, Alex C. Latham and the defendant Saml. W. Latham executors to the said last will and testament.

(3) The defendant Saml. W. Latham qualified as the sole executor to the said last will and testament of the said Fred P. Latham, deceased, and letters of administration were issued to him in December, 1866.

(4) On or about the 28th day of April, 1870, the defendant caused a special proceeding to be instituted before the clerk of the superior court of Craven county, wherein the heirs and devisees of Fred P. Latham were made parties, and in said special proceeding obtained an order of license to make sale of all the real estate devised by the last will and testament of the said Fred P. Latham, and described in said will, which will is referred to for description thereof, and also other real estate not described in said will, and which said real estate is also described in the petition in the special proceeding heretofore referred to, which petition is made a part hereof for the purpose of a full and complete description of the real estate ordered to be sold.

(5) That pursuant to the order made in the said special proceeding, the said S.W. Latham, as executor of F. P. Latham, deceased, made sale of the lands devised in said will, and other lands described in said petition by deed dated October 7, 1871, and recorded in Book 97, page 133, in Craven county registry, for a consideration of $1,959, and on the same day the said Cicero Green conveyed said land to Geo. Green, which deed is recorded in Book 97, p. 136, in the register's office of Craven county, and on the same day the said Geo. Green conveyed the same lands to the defendant, S.W. Latham, by deed recorded in Book 97, p. 126, register's office of Craven county.

(6) The plaintiffs allege further that the defendant S.W. Latham failed and refused to make sale of the Sand Hill lands and the South Creek lands mentioned in item 9 of the said will, and therein directed to be sold for the purpose of paying the debts of the said F. P. Latham, deceased, but made sale of the lands described in the petition, as aforesaid, including more than 6,000 acres of land for less than $2,000, and many times less than the true value of the said land; that at the time of the sale of the said lands many hundred acres of same were cleared and in cultivation, with the old home place, containing a valuable home and outbuildings and the 800-acre plantation devised to S.W. Latham in trust for A. C. Latham, during his life, and then to his children, which had on it a valuable home and outhouses, and that the said lands so sold by the defendant S.W. Latham, as executor, were bought in by Cicero Green, and on the same day conveyed by the said Cicero Green to Geo. Green, attorney and agent of defendant, for the same consideration, and on the same day conveyed by Geo. Green to the said S.W. Latham, defendant, for the same consideration, and the plaintiffs allege that the defendant was in truth and in fact purchaser at his own sale, and had the said Cicero Green and George Green, his attorney and agent, to buy in said lands for him, and had the said Cicero Green to convey the same to Geo. Green, and the said Geo. Green to convey the same back to the defendant for the purpose of covering up and concealing the fact that the defendant was the real purchaser, and that in truth and in fact, no consideration whatever passed between the said Cicero Green and the said Geo. Green, and they were conspiring with the defendant for the purpose of enabling the defendant to purchase in all of said lands at his own sale, made by him as executor of F. P. Latham, deceased, for many times less than the real value thereof, to enable him to get and hold title to same in fee simple, clear of and discharged of the trusts declared by the aforesaid will."

The complaint then alleges certain sales and conveyances by S.W. Latham about the same time of certain real estate not described in the will of F. P. Latham, the greater portions of which were embraced in executor's petition for sale for assets, in 1870, or were included in the deeds by which S.W. Latham conveyed the said property to the Greens, and they in turn back to himself, and with averments that this and all the other realty had passed into hands of third parties, whose title had matured by time and adverse possession of the holders. And in section 19 of complaint further allegation is made as follows:

"That these plaintiffs had no knowledge whatever of the matters and things hereinbefore alleged and the fraud and wrongs perpetrated on them, by the defendant, S.W. Latham, until within less than a month of the institution of this suit, and within 3 years prior to the institution thereof. Neither these plaintiffs, nor those under whom they claim, had any knowledge of the matters and things and fraud herein alleged, until within 3 years of the bringing of this suit."

And after alleging the great value of the lands dealt with in these proceedings, and that they were bought in by defendant executor at a nominal sum, the complaint closes with the statement and prayer as follows:

"These plaintiffs are informed, and believe and so allege, that they are entitled to recover of the defendant the value of the said lands and the value of the rents and the profits therefrom arising. And by reason of the wrongful acts of the defendant hereinbefore alleged, these plaintiffs allege that they have been damaged in the sum of $92,000, as their interest appears herein, and that the defendant is indebted to them in that amount, with interest from October 7, 1871.

Wherefore the plaintiffs pray that they recover of the defendant, the sum of $92,000, with interest thereon from October 7, 1871, together with the costs of this action, and for such other and further relief as to the court seems proper."

In an amended complaint filed by leave of court, plai...