Parker v. Eason

Decision Date02 March 1938
Docket Number103.
Citation195 S.E. 360,213 N.C. 115
PartiesPARKER v. EASON et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Wilson County; Clawson L. Williams Judge.

Action by Doris Parker against J. B. Eason, as executor of the estate and trustee for plaintiff under the will of Joseph D Eason, deceased, and individually, to recover moneys alleged to have been wrongfully withheld in settlement by defendant as executor and trustee. Judgment for defendants, and plaintiff appeals.

Affirmed.

One of three daughters of woman who died before death of her father whose will directed that his advances to any of his children be accounted for in division of his property and devised one-twelfth of residue of his estate in trust for such granddaughters, was chargeable with one-third of her mother's indebtedness to estate for sums advanced by testator.

A will directing that all advances by testator to any of his children be accounted for in division of his property and devising one-twelfth of residue of his estate in trust for three daughters of testator's deceased daughter contemplated equal distribution of residue after deducting such advancements, as in case of intestacy.

"The above-entitled matter came on to be heard before his honor, Clawson L. Williams, judge presiding, and a jury. After the reading of the pleadings, the plaintiff admitted in open court that she had received from the defendant on account of whatsoever sum was due her under the will of her grandfather, Jos. D. Eason, the sum of $345.39, as set out in the fourth paragraph of her complaint, and that she was properly chargeable with the sum of $209.38 in addition thereto, which sum had, by the defendant, been advanced to her sister, Grace Parker, at the special request and instance of the plaintiff, with the direction and understanding that she, the plaintiff, should be charged therewith, the defendant having heretofore in his account filed with the clerk of the superior court charged the plaintiff with the two respective sums.

The following facts were admitted in open court, to wit: Jos. D. Eason, deceased, was the father of Sallie Eason Parker; the plaintiff Doris Parker, Grace Parker, and Edith Parker are the children of Sallie Eason Parker. Sallie Eason Parker died prior to the death of her father, Jos. D. Eason. The plaintiff Doris Parker, Grace Parker, and Edith Parker are the persons mentioned in subsection ------ of the fifth item of the last will and testament of Jos. D. Eason, deceased. In making settlement of the estate of Jos. D. Eason, deceased, the defendant, as executor, charged the plaintiff herein with one-third of certain indebtedness of Sallie Eason Parker to Jos. D. Eason, subject to certain credits, all of which is set out in the answer and in the report filed by the defendant herein as trustee of the plaintiff and her other sisters.

The plaintiff contended that under a proper construction of the will of her grandfather, Jos. D. Eason, the defendant, as executor of Jos. D. Eason, should not have charged her with one-third of the indebtedness of her mother to the testator. The defendant, on the other hand, contended that under a proper construction of the will of Jos. D. Eason, he was required to charge the plaintiff with one-third of the indebtedness of her mother, his daughter, to Jos. D. Eason.

The defendant introduced evidence tending to show that Sallie Eason Parker owed her father, his testator, the sums of money which he had charged against the plaintiff, and her sisters in his accounts. The plaintiff stated, in open court, that she had no evidence to offer to contradict the evidence offered by the defendant tending to show that Sallie Eason Parker did owe her father, the defendant's testator, the sums of money which he had charged against the plaintiff and her sisters.

The court being of the opinion that under a proper construction of the will of Jos. D. Eason, it was the duty of the defendant to charge against the share of the plaintiff one-third of the net indebtedness of her mother, Sallie Eason Parker, to her father, Jos. D. Eason, the testator of defendant, as the defendant did in the settlement of the said estate, whereupon the plaintiff stated in open court, that if the defendant had the right to charge the items, the correctness of the amount of the items was admitted and she waived her right to the submission of an issue to the jury, admitting that the items as charged were the correct amounts of the indebtedness of her mother, Sallie Eason Parker, to the estate of Jos. D. Eason.

It is therefore, upon motion, ordered, decreed, and adjudged that the plaintiff take nothing by this action; that the defendant go hence without day and recover his costs in this behalf expended.

Clawson L. Williams, Judge Presiding."

To the foregoing judgment the plaintiff excepted, assigned error, and appealed to the Supreme Court.

"Agreed case on appeal. This is a civil action commenced by plaintiff to recover of defendant, in his various capacities, certain moneys alleged to have been wrongfully withheld in a settlement made by the defendant, as executor of the estate of Joseph D. Eason and as trustee for plaintiff under the will of Joseph D. Eason.

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