Odom v. Palmer
| Decision Date | 11 December 1935 |
| Docket Number | 613. |
| Citation | 182 S.E. 741,209 N.C. 93 |
| Parties | ODOM et al. v. PALMER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Anson County; Alley, Judge.
Suit by W. P. Odom and others against Fannie Dry Odom Palmer, wherein defendant and another filed an interplea. From an adverse judgment, plaintiffs appeal.
Affirmed.
Demurrer admits for that purpose truth of alleged facts and challenges right of pleader in any view of matter.
The facts were these:
John W Odom died intestate in Anson county on April 26, 1926 leaving him surviving his widow, Fannie Dry Odom (now Fannie Dry Odom Palmer, one of the defendants). The plaintiffs are his children and grandchildren and only heirs at law.
The Bank of Wadesboro and the said Fannie Dry Odom Palmer qualified as administrators of said estate, and in October 1926, filed a petition to sell the lands of decedent to make assets to pay debts. All the heirs were duly made parties and on August 29, 1927, a decree was made by the clerk of the superior court ordering sale of the lands described in the petition, and appointing H. P. Taylor, T. L. Caudle, and H. H. McLendon as commissioners to sell.
Pursuant to said decree said commissioners thereafter sold all of said land except several small parcels, and the entire net proceeds was used to pay debts of the estate.
That in said proceeding to sell land to create assets the defendant Fannie Dry Odom Palmer filed an answer in which she asked that the value of her dower rights in said land according to her expectancy in life be determined and paid to her absolutely out of the proceeds of such sales.
That on February 22, 1928, the plaintiffs as children and heirs at law of Jno. W. Odom, instituted suit against Fannie Dry Odom Palmer and her husband, C. M. Palmer, and filed complaint alleging that in the lifetime of Jno. W. Odom certain lots in the town of Wadesboro were conveyed to said Mrs. Palmer under such circumstances as to create a resulting trust in favor of Jno. W. Odom, and that she then held the title thereto for the benefit of these plaintiffs as his heirs, and asked the court to so declare, and to require her to account for the rents. The defendant in that action, Mrs. Fannie Dry Odom Palmer, filed a demurrer. When the case came on for trial at the September term, 1928, of said court, before Stack, J., all the parties being before the court, a compromise was effected and a consent judgment entered, wherein it was adjudged that the plaintiffs and Fannie Dry Odom Palmer were "jointly the owners of the property," and Rowland S. Pruette, H. P. Taylor, and B. M. Covington were appointed commissioners to sell the lots described in the action, with directions to pay 55 per cent. of the net proceeds to Fannie Dry Odom Palmer and 45 per cent. to the plaintiffs. It was further adjudged that all encumbrances on said lots should constitute a liability of the estate of Jno. W. Odom and be paid by his administratrix.
The said judgment contained the following provisions:
"It is further adjudged that the heirs at law of John W. Odom and the administrators aforesaid, shall not plead the statute of limitations against any claims of Fannie Dry Odom (now Fannie Dry Odom Palmer) against the estate of John W. Odom for any money loaned or advanced to the said John W. Odom, by her during his lifetime.
This judgment, however, shall not be construed as an admission of any liability of any claims which Fannie Dry Odom may have against the estate of John W. Odom, such claims being subject to due proof as other claims presented against said estate.
This cause is retained for such further orders and decrees as may be necessary to be made in order to effectuate the intents and purposes of this judgment."
Pursuant to the directions contained in the judgment of Judge Stack, the commissioners sold the lots described, paid to said Mrs. Palmer 55 per cent. of the net proceeds, and now hold 45 per cent. thereof for the plaintiffs, amounting to about $13,000.
At March term, 1935, of Anson, the Bank of Wadesboro and Mrs. Fannie Dry Odom Palmer, administrators of the estate of Jno. W. Odom, filed a petition asking to be allowed to make themselves parties to the action in the superior court, entitled as above, alleging that all the assets of the estate, except a small amount, had been exhausted, and that there were debts remaining unpaid amounting to about $14,000. The petition was allowed by the court, and no exception was taken thereto.
By leave of the court thus obtained the said administrators filed an interplea setting out the condition of said estate and alleging there was due said Fannie Dry Odom Palmer for balance due on the value of her dower rights in the lands sold under the decree of August, 1927, $8,249.22, for money advanced by her, $2,642.55, and that there was due Bank of Wadesboro on note $2,799.20, and due clerk of the court $375. And petitioners asked that the 45 per cent. of proceeds of sale of lots now in the hands of commissioners be condemned to pay said debts and be turned over to said administrators for that purpose.
There was no claim for dower in the 45 per cent. of proceeds of sale under the Stack judgment.
The plaintiffs (other than F. O. Clarkson, trustee) filed no reply to this interplea, but moved to dismiss the petition "for that it did not state a cause of action to show any right to the proceeds in question."
Motion denied and plaintiffs excepted.
Plaintiff F. O. Clarkson, trustee in a deed of trust by Rosa L. Niven, one of the plaintiffs, filed a reply denying, for want of sufficient information, the allegations of indebtedness of the estate, and averring further that the estate had been wasted by the administrators, and denied petitioner's right to have the fund paid over to the administrators of said estate.
By virtue of an agreement of counsel that the court might find the facts and conclusions of law without the intervention of a jury, as of June term, 1935, Judge Alley entered the judgment appealed from, wherein, after finding certain facts he concluded as a matter of law that the plaintiffs took their proportion of the land and 45 per cent. of the proceeds of sale thereof as heirs of Jno. W. Odom, and that said fund in the hands of the commissioners was...
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