Miller v. Miller

• Decision Date: 11 March 1931
• Docket Number: 466.
• Parties: MILLER et al. v. MILLER et al.
• Court: North Carolina Supreme Court

157 S.E. 604

200 N.C. 458

MILLER et al. v. MILLER et al.

No. 466.

Supreme Court of North Carolina

March 11, 1931

Appeal from Superior Court, Mecklenburg County; Sink, Special Judge.

Action by Stephen A. Miller and others against G. L. Miller executor of the will of Jasper Miller, deceased, and others. From a judgment of nonsuit, plaintiffs appeal.

Reversed.

Husband as wife's administrator, filing final account taking corporate stock wife left, under claim of exclusive ownership, notwithstanding she left children, disavowed trust.

Minnie Fair Miller, wife of Jasper Miller, owned a certain lot in the city of Charlotte. On February 24, 1911, she conveyed said land to a corporation known as Jasper Miller & Sons Company and received in payment for said property certain shares of stock in said corporation. In September, 1915 Minnie Fair Miller died intestate, owning 191 shares of common stock of said corporation out of 200 shares total outstanding issued stock. Her husband, Jasper Miller qualified as administrator of her estate on September 20, 1915. At the time of her death, Minnie Fair Miller left her surviving her husband, Jasper Miller, and the following children, to wit: Stephen A. Miller, Minnie M. Asbury, Harriet M. Watts, Carrie Louise Miller, and G. L. Miller. Thereafter on September 20, 1916, Jasper Miller, administrator, filed a final account as administrator, which is recorded in Record of Settlements 6, at page 52, and is as follows: "Having qualified as administrator of the estate of Minnie Fair Miller, and having paid all claims presented against said estate, and being the sole beneficiary, I have retained in my possession the residue of said estate." At the time said final account was filed, all of the children of Minnie Fair Miller were of age. Thereafter proceedings were taken to dissolve the Jasper Miller & Sons corporation, and on May 11, 1918, the corporation, through Jasper Miller, president, and G. L. Miller, secretary, executed and delivered to Jasper Miller a deed in fee simple for the property in controversy. This deed was also signed by G. L. Miller and Jasper Miller as directors of the company. Jasper Miller surrendered to the corporation the shares of stock formerly owned by Minnie Fair Miller, which apparently constitutes the only consideration for said deed.

Subsequently Jasper Miller married the defendant Cora P. Miller, and it is admitted in the pleadings that on or about the -- day of June, 1918, the said Jasper Miller removed his residence to the state of Virginia and continuously resided out of the state of North Carolina from June, 1918, until February, 1923.

After the death of Minnie Fair Miller, the corporation borrowed $6,000 from the Life Insurance Company of Virginia and executed a mortgage upon the land in controversy to secure said indebtedness. On December 20, 1919, Jasper Miller borrowed from his wife, the defendant Cora Miller, the sum of $4,500, and executed to her a note for said amount. It was alleged by the defendant Cora Miller that the proceeds of this loan were used to pay off and discharge the deed of trust held by the Life Insurance Company of Virginia.

Jasper Miller died April 7, 1928, leaving a last will and testament appointing his sons, G. L. Miller and Stephen Alexander Miller, executors of said will. The defendant Cora Miller dissented from said will, and her dower has been assigned in other real estate. However, the widow alleges that there was a balance of $2,545 due her on note above referred to, and it is alleged that on September 10, 1928, she reduced said claim to judgment in the superior court of Mecklenburg county. This action was instituted on July 5, 1929, the plaintiffs claiming in substance that Jasper Miller held said land in trust for his children, and that they were tenants in common thereof. The widow, upon the other hand, asserts and contends that the plaintiffs are estopped from setting up any claim for said land, and that their claims are barred by various statutes of limitation.

At the conclusion of plaintiffs' evidence there was judgment of nonsuit, and the plaintiffs appealed.

Walter Clark, of Charlotte, for appellants.

Bridges & Orr and Thaddeus A. Adams, all of Charlotte, for appellees Carrie A. Petty and Cora P. Miller.

J. H. McLain, of Charlotte, for appellee G. L. Miller.

BROGDEN J.

Substantially the case is this: A married woman, Minnie Fair Miller, dies intestate, leaving a husband and five children. She owns 191 shares of stock in a corporation, of which her husband is president. Her husband qualifies as administrator and files a final report in 1916, stating that he has paid all debts, and that, as he is the sole distributee of the personal property of his wife, takes possession of said stock, claiming title thereto in his own right. Thereafter he surrenders the stock to the corporation issuing the same and takes in return therefor a deed in his own name for all real estate owned by the corporation, which is dissolved. In 1918 he remarries and moves to Virginia, remaining there until 1923, when he returns to North Carolina, and dies in 1928, leaving a last will and testament. His second wife dissents from the will and has her dower allotted in property other than that in controversy. At the time of his death he owes his second wife $2,545, for which she took judgment in 1928, after the death of her husband. On July 5, 1929, the heirs at law and distributees of the first wife, Minnie Fair Miller, institute an action against the second wife, the executor, and another, alleging that they are tenants in common of the real estate which was purchased with the stock owned by their mother.

The following questions of law arise upon the foregoing facts, to wit:

(1) What rights, if any, have the children of Minnie Fair Miller in and to the property purchased by her husband, Jasper Miller, with stock belonging to her at the time of her death?

(2) Are the claims of the children of Minnie Fair Miller...