Lightner v. Boone
| Decision Date | 04 November 1942 |
| Docket Number | 164. |
| Citation | 22 S.E.2d 426,222 N.C. 205 |
| Parties | LIGHTNER et al. v. BOONE. |
| Court | North Carolina Supreme Court |
Civil action for an accounting of trust funds.
By the will of Frances M. Lightner, late of Polk County, this State published and probated in 1938, a trust fund of $40,000 was set aside for the proper college education of her grandchildren living at her death, and her son-in-law, Daniel F. Boone, an attorney of Winston-Salem, N. C., was named as trustee of this fund. An advisory committee was also named in the will, and the trustee was enjoined to consult this committee in the handling of the trust estate. The trust was to terminate as to each grandchild upon reaching the age of 30 years. After-born grandchildren were specifically excluded from the fund. The plaintiff, Martha Penelope Boone, who was born September 14, 1938, falls in this excluded class.
In order to place the plaintiff, Martha Penelope Boone, on a parity with the other grandchildren, her grandfather Clarence A. Lightner, assigned and transferred two of his life insurance policies, aggregating $15,449.10, to her mother, Martha Lightner Boone, with the understanding and agreement that the proceeds of such insurance, when collected, should constitute a trust fund for the education of Martha Penelope Boone, on the same terms and provisions as set forth in the will of Frances M. Lightner for the management and control of the educational trust fund provided therein for the other grandchildren. Clarence A. Lightner died December 8, 1938. His life insurance policies were duly collected and the proceeds were turned over to the defendant as an educational trust fund for the benefit of Martha Penelope Boone. The other plaintiffs allege an interest in this fund in case the whole fund is not properly expended prior to her attaining the age of 30 years.
Due to disclosures made in other litigation, Lightner v Boone, 221 N.C. 78, 19 S. E.2d 144, the plaintiffs became apprehensive of the safety of the trust fund here involved, and on June 21, 1941, they instituted this action in Polk County and caused summons and complaint to be personally served on the defendant on June 23, 1941, by the Sheriff of Forsyth County. The defendant filed answer August 5, 1941, asking that the action be dismissed for that "because of what took place in the Superior Court of Forsyth County" on June 23, 1941, he had concluded "on that date" to terminate his previous North Carolina domicile and residence and change it to Washington D. C., by reason of which the courts of this State are without any jurisdiction in the matter, and further alleging that by virtue of written instructions given by Clarence A. Lightner, prior to his death, the defendant was authorized to expend said funds, in his discretion, "for the general care and education of Martha Penelope Boone". The plaintiffs challenge the validity of these instructions on the ground of mental incapacity of the maker. The defendant admitted "that he is not managing said fund pursuant to any directions in the will of Frances M. Lightner". His answer was signed by Roy L. Deal, Winston-Salem, N. C., attorney for defendant, and Clifford M. Toohy, Detroit, Mich., of counsel for defendant.
It appears that the defendant took a number of depositions in Washington and New York during the latter half of 1941, preparatory to his defense herein.
When the case was called for trial at the January-February Term, 1942, Polk Superior Court, the defendant, through his counsel, made application for a stay of the proceeding under the provisions of an Act of Congress, known as the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S. C.A.Appendix § 501 et seq. (), it being alleged that the defendant was a major in the United States Army and had been called into active service on November 8, 1940, and assigned to duty in Washington, D. C.
It was further made to appear that defendant's Michigan counsel was busily engaged in the trial of causes in Detroit and his resident counsel, also a major in the United States Army, was expecting to be called immediately into the military service, and that, therefore, it would be necessary for defendant to procure additional counsel.
The court transferred the case to Henderson Superior Court and ordered a continuance until the May-June Term, 1942, thereof, and set the case peremptorily for hearing on the first day of the term, counsel for defendant requesting "that the case be continued until May 25, 1942, in order to give the defendant ample time to employ other counsel".
On account of the nature of the action, and the charges involved, the court ordered the defendant to turn over to the Clerk of the Superior Court of Henderson County, on or before the 25th day of May, 1942, all securities, evidences of indebtedness, and moneys belonging to the said educational trust. It was further provided that a copy of the order be certified to the Adjutant General of the United States for such information and grants of leave as he might deem appropriate. These precautions were taken "to avoid undue delay to anyone".
When the case was again called for trial on May 25, 1942, Henderson Superior Court, the defendant appeared through his counsel, R. R. Williams of the Asheville Bar, "for the sole purpose of moving for a continuance". The motion was overruled; whereupon counsel for the defendant declined to appear further in the case.
The trial proceeded before the jury and resulted in a verdict and judgment for plaintiffs. Judgment was signed on Tuesday May 26. Two days later, on May 28, Mr. Cocke, of the firm of Williams & Cocke, appeared before the court, moved to set the verdict aside, objected to the judgment and the signing thereof, and gave notice of appeal to the Supreme Court.
R. R. Williams, of Asheville, for appellant.
J. E. Shipman, of Hendersonville, and McCown & Arledge, of Tryon, for appellees.
When the trial court was last called upon to stay proceedings herein under the Soldiers' and Sailors' Civil Relief Act of 1940, he was faced with defendant's report, filed that day with the Clerk of the Superior Court of Henderson County, showing the trust account to be in a precarious condition. Eight items therein, aggregating $1,042.73 represented payments made by the defendant in preparing his defense in this action. Moreover, the admission in defendant's answer that he was "not managing said fund pursuant to any directions in the will of Frances M. Lightner", and the allegation that he was proceeding under ante mortem instructions from Clarence A. Lightner, which the plaintiffs challenged because of alleged incapacity of the maker, were sufficient...
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