Linker v. Linker

• Decision Date: 13 April 1938
• Docket Number: 383.
• Citation: 196 S.E. 329,213 N.C. 351
• Parties: LINKER v. LINKER et al.
• Court: North Carolina Supreme Court

196 S.E. 329

213 N.C. 351

LINKER v. LINKER et al.

No. 383.

Supreme Court of North Carolina

April 13, 1938

Appeal from Superior Court, Cabarrus County; J. A. Rousseau, Judge.

Proceeding by Charles E. Linker, administrator of the estate of L. B Linker, deceased, against Charles E. Linker, individually and others, to sell land to make assets to pay debts, in which the plaintiff and judgment creditors of J. B. Linker one of the heirs of the intestate, controvert disposition of the heir's share of surplus funds. From the judgment plaintiff and defendant Mrs. Lou A. Teeter, administratrix of the estate of M. F. Teeter, deceased, appeal.

Affirmed.

Special proceeding to sell land to make assets to pay debts, in which plaintiff and judgment creditors of one of the heirs of intestate controvert disposition of such heir's share of surplus funds.

The parties agree to facts substantially as follows: Charles E. Linker is duly qualified as administrator of L. B. Linker, deceased, who died intestate, possessed and seized of both personal and real property in Cabarrus county, and leaving his son, J. B. Linker, and six others as his only distributees and heirs at law. On the date of the death of L. B. Linker, his son, J. B. Linker, was indebted to him in the sum of $5,199.07-an "unsecured indebtedness, and not advancements." On said date there were judgments against J. B. Linker in favor of M. F. Teeter, W. A. Newell, Buckeye Cotton Oil Company, Standard Oil Company, Southern Cotton Oil Company, C. F. Little, and Efird's Department Store, respectively, in various amounts, duly docketed in Cabarrus county in priority of time in the order named-that of M. F. Teeter having been docketed first. M. F. Teeter is now dead and Mrs. Lou A. Teeter is the administratrix of his estate. There being an insufficiency of personal property to pay the debts of the estate of L. B. Linker, the plaintiff instituted this special proceeding to sell the land of which L. B. Linker died seized in Cabarrus county to make assets to pay debts, and same was duly sold. After applying the proceeds to the payment of the debts, there remained a surplus of $463.47 for each of the seven heirs at law. With reference to the J. B. Linker share, it being agreed that he is a nonresident, the parties contend: (1) Plaintiff, as administrator of L. B. Linker, contends that he has and should exercise the right to retain that share to apply on the indebtedness due by J. B. Linker to his father, the intestate; (2) Mrs. Lou A. Teeter, administratrix of M. F. Teeter, deceased, contends that the whole amount should be applied to the judgment of M. F. Teeter against J. B. Linker; and (3) W. A. Newell and the other judgment creditors contend that the whole amount should be distributed pro rata among and in proportion to the amounts due to all judgment creditors whose judgments were docketed against J. B. Linker at the date of the death of L. B. Linker, irrespective of priorities in date of docketing.

From judgment directing the distribution of the fund in accordance with the third contention, the plaintiff, administrator of L. B. Linker, deceased, and the defendant, Mrs. Lou A. Teeter, administratrix of M. F. Teeter, deceased, each appeal to the Supreme Court, and assign error.

Armfield, Sherrin & Barnhardt, of Concord, for Charles E. Linker.

W. S. Bogle, of Concord, for Mrs. Lou A. Teeter.

H. S. Williams, of Concord, for W. A. Newell.

WINBORNE Justice.

Upon the facts as stated, these questions arise:

1. Where there is a surplus of proceeds of the sale of land to make assets to pay debts of the estate of an intestate after such debts have been paid, has the administrator of the intestate the right to retain and apply the share of an heir in payment of an indebtedness, not an advancement, due by such heir to the intestate when judgment creditors of such heir hold judgments duly docketed in the county where the land is situated, at the date of the death of the intestate?

2. If not, is the judgment creditor whose judgment was first docketed entitled to be paid in full before such other judgment creditors?

The answer to each is "No."

Upon the death of an intestate his personal estate vests in the administrator, and the lands descend to his heirs, subject to be sold, if necessary, to make assets to pay debts of the intestate. Price v. Askins, 212 N.C. 583, 194 S.E. 284; Harris v. Russell, 124 N.C. 547, 32 S.E.

958; Avery v. Guy, 202 N.C. 152, 162 S.E. 217.

"A personal respresentative has no control of the freehold estate of the deceased; unless it is vested in him by a will or where there is a deficiency of personal assets and he obtains a license to sell real estate for the payment of debts. * * * The heir of the testator is not divested of the estate which the law casts upon him, by any power or trust until it is executed." Floyd v. Herring, 64 N.C. 409; Speed v. Perry, 167 N.C. 122, 83 S.E. 176, and cases cite...