Rose v. Bank of Wadesboro
| Decision Date | 22 May 1940 |
| Docket Number | 596. |
| Citation | 9 S.E.2d 2,217 N.C. 600 |
| Parties | ROSE v. BANK OF WADESBORO. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Thomas H. Leath, of Rockingham, and Connor & Connor, of Wilson for plaintiff.
Rowland S. Pruette and B. M. Covington, both of Wadesboro, for defendant.
The defendant was the guardian of the plaintiff, and upon becoming of age the plaintiff instituted this action for an accounting. The defendant was also the administrator of the estate of W. S. Little, father of the plaintiff.
At the March Term, 1938, upon motion of the plaintiff, the case was referred to U. L. Spence, Esquire, to which action the defendant excepted and reserved all rights.
On 5 July, 1938, in Wadesboro, the referee conducted a hearing of the cause, at which time and place evidence was taken and argument heard. On 10 June, 1939, the referee filed his report. To said report the plaintiff and defendant filed exceptions.
The case came on for hearing at the November Term, 1939, of Anson, upon the report and exceptions thereto, and the court overruled the exceptions both of plaintiff and defendant with the exception of one of defendant's exceptions which it sustained, and after allowing a credit of $266.66 on the conclusion of the referee which was necessitated by the sustaining of the one exception, confirmed the report of the referee and entered judgment accordant therewith.
From the judgment of the Court confirming the report of the referee as modified, both plaintiff and defendant appealed, assigning error. However, no exception was taken to the modification made by the court to the referee's report.
Plaintiff's assignments of error 1, 2 and 3 are to the court's failure to sustain her exceptions 1, 2, 3, 4 and 5 to certain findings of fact by the referee. There is ample evidence to sustain the findings assailed by the assignments. "In reference cases, the findings of fact, approved or made by the judge of the Superior Court, if supported by any competent evidence, are not subject to review on appeal, unless some error of law has been committed in connection therewith." Wimberly v. Washington Furniture Stores, 216 N.C. 732, 6 S.E.2d 512, and cases there cited.
Plaintiff's assignment of error 4 is to the court's failure to hold as a matter of law, as set forth in her first exception to the referee's conclusions of law (Exception No. 6), that the defendant had forfeited its rights to all commissions, both as administrator and as guardian. This assignment cannot be sustained, since the findings of fact by the referee, sustained by evidence and approved by the court, establish that the defendant both as administrator and as guardian has from time to time filed the reports required of it by law showing the conditions of the estates administered, and that said reports so filed have been audited by the clerk and each retention of commissions has been allowed by the clerk and is well within the amounts prescribed by the statutes, C.S. §§ 157 and 2190, and that no excessive commissions have been allowed and that the defendant has acted in good faith and with due diligence in administering its trusts, and has exercised sound business judgment and accounted for all funds received by it in both fiducial capacities.
Plaintiff's assignment of error 5 is to the court's failure to sustain her second exception to the referee's conclusions of law (Exception No. 7), wherein it was concluded that the defendant was entitled to commissions on the sum of $24,724.98 cash received by it as guardian from itself as administrator, representing the distributive share of the plaintiff in the estate of her deceased father. This assignment cannot be sustained. C.S. §§ 157 and 2190 provide that guardians shall be entitled to commissions not exceeding five per cent upon the amount of receipts. No exception is made of receipts received from itself in another capacity, and we see no logical reason why there should be, or how such an exception can be read in to the statute. The commission retained and approved by the clerk, 2 1/2%, is well within the statutory limitation and cannot be held as a matter of law to be excessive under the circumstances of the case.
Plaintiff's assignment of error 6 is to the court's failure to sustain her third exception to the referee's conclusions of law (Exception No. 8), that the defendant was entitled to commissions on money received by it as guardian from the sale of plaintiff's interest in lands inherited by her from her late father. This assignment cannot be sustained. The amount retained was 3%--well within the statutory limitation--and was approved by the clerk. While this money may have been deemed real estate for the purpose of inheritance in the event of the death of the beneficiary thereof, still it was nevertheless money received and therefore a "receipt" when it came into the hands of the guardian, and as such was subject to the commissions allowed by the statutes.
Plaintiff's assignment of error 7 is to the court's failure to sustain her fourth exception to the referee's conclusions of law (Exception No. 9), that the defendant was entitled to commissions on $3,584.31 advanced by the defendant as administrator to itself as guardian and used to purchase bonds for the plaintiff. This assignment cannot be sustained. The finding of fact upon which the conclusion of law is predicated is to the effect that the money so advanced was applied on the distributive share of the plaintiff in her father's estate and was for the purpose of purchasing bonds for the plaintiff. Such money when it came into the defendant's hand as guardian was a receipt and as such under the statutes, C.S. §§ 157 and 2190, was subject to a commission within the limitations of the statutes when approved by the clerk. The 3% retained was within such limitations and was so approved.
Plaintiff's assignment of error 8 is to the court's failure to sustain his fifth exception to the referee's conclusions of law (Exception No. 10), that the plaintiff was not entitled to recover the penalties and costs which the defendant, as guardian, was required to pay to the Town of Ansonville and County of Anson by reason of its failure to list the property of the plaintiff for taxes. This assignment cannot be sustained for the reason that the conclusion is supported by the findings of fact. The facts found divulge that the cash balances of the plaintiff held by the defendant as guardian were not listed for a number of years prior to the year 1928, as well as thereafter, and that the penalties imposed were for failure to list for the years 1928, 1929, 1930, 1931 and 1932, and that no taxes were paid for the years prior to 1928, and that had such taxes been paid they would have amounted to far more than the penalties paid for failing to list for the year 1928 and subsequent years, and that therefore "the failure to list the cash balances and pay taxes thereon for the whole period of failure, resulted, it is manifest, to the advantage of plaintiff and she was not damaged thereby." If "she was not damaged thereby", it follows as a matter of law she cannot recover by reason thereof.
Note: The plaintiff does not make an assignment of error of the court's failure to sustain her sixth exception to the referee's conclusions of law (Exception No. 11), that the plaintiff was not entitled to recover $149.78 claimed for alleged negligence in failing to insure the property of plaintiff against damage by fire. Therefore, this exception is abandoned.
Plaintiff's assignment of error 9 is to the court's failure to sustain her seventh exception to the referee's conclusions of law (Exception No. 12), that the plaintiff was not entitled to recover $434.80 retained by defendant as commissions on $8,696 interest paid by the defendant on cash balances which the defendant, as guardian, had on deposit in defendant's commercial department. This assignment cannot be sustained, since, although where a guardian uses the funds of his ward in his own business he is chargeable with the highest rate of interest allowed by law, still where he uses the funds of his ward, and makes regular annual settlements, charging himself with the interest thereon, he is entitled to his commissions on the interest so charged. Fisher v. Brown, 135 N.C. 198, 47 S.E. 398.
Plaintiff's assignment of error 10 is to the court's failure to sustain her eighth exception to the referee's conclusions of law (Exception No. 13), that the plaintiff was not entitled to recover $25 commissions retained by the defendant as guardian on the sale of stock of the Roberdel Manufacturing Company for the sum of $500. This assignment cannot be sustained, since the $500 received for the stock was money received by the guardian and as such was a receipt subject to the provisions of the statutes, C.S. §§ 157 and 2190, as to commissions.
Plaintiff's assignment of error 11 is to the court's failure to sustain her ninth exception to the referee's conclusions of law (Exception No. 14), that the plaintiff is not entitled to recover of the defendant the sum of $1,315, or any part thereof, by reason of the failure to collect rent on a garage belonging to the estate of her late father. This assignment cannot be sustained for the reason that the conclusion is supported by the findings of fact. It is specifically found that the sum collected amounted to the reasonable rental value of the garage for the time it was rented, and that one-half thereof was received by the defendant as guardian of the plaintiff. There is no finding that there was any contract for any specific amount of rent to be paid after August, 1928, to which date the rent was paid in full.
Plaintiff's assignment of...
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