Settle v. Settle

• Decision Date: 25 May 1906
• Parties: STATE ex rel. SETTLE v. SETTLE.
• Court: North Carolina Supreme Court

54 S.E. 445

141 N.C. 553

STATE ex rel. SETTLE v. SETTLE.

Supreme Court of North Carolina

May 25, 1906

Appeal from Superior Court, Guilford County; Ferguson, Judge.

Action by the state, on the relation of Floreda Settle and another against Thomas Settle, administrator of Mrs. Mary Glen Settle, deceased. From a judgment for plaintiff, defendant appeals. Reversed.

A recital in a decree that a cause had been retained for further orders after the making of a prior decree is a part of the record, and can be contradicted only by a direct attack, either by an independent action or an action in the cause.

King & Kimball, for appellant.

E. J Justice and Z. V. Taylor, for appellee.

CONNOR. J.

This cause is before us upon appeal from a judgment rendered upon the pleadings and exhibits attached thereto. The plaintiffs upon the complaint and answer, treating the facts set forth in the answer as insufficient to establish a plea in bar moved his honor for judgment that defendant administrator render an account of his administration and from a judgment accordingly, defendant appealed.

In considering the appeal we must therefore treat the allegations in the answer as being true. The uncontradicted facts, as set forth in the complaint and admitted in the answer, are: Mrs. Mary A. Settle died intestate, domiciled in Greensboro, N. C., March, 1895, leaving surviving her children, heirs at law, and distributees, the defendants Thomas Settle, Mrs. Nettie Beall, Mrs. Mary Sharpe, Mrs Lizzie Boyd, Douglas Settle, Mrs. Caroline Wilkes, Mrs. Julia Holt, David Settle, and the relator, Miss Floreda Settle; the last four being infants. The defendant Thomas Settle on March 11, 1895, was appointed administrator of the deceased and qualified by executing a bond in the sum of $20,000 with the other defendants as sureties thereto. Mrs. Settle, at the time of her death, was possessed of certain personal estate consisting of bank and other stock, choses in action, and household furniture, aggregating about $5,000; a policy of insurance on her life for $5,000, and was seized and possessed of a dwelling house in the city of Greensboro of the value of $7,000, aggregating about $17,000. The personalty went into the hands of the defendant administrator. On the 8th day of July, 1895, the said children and their husbands entered into an agreement as follows: "We, the undersigned heirs at law of Mary A. Settle, deceased, hereby agree that it is best for the interest of all and particularly for the minor children of said Mary A. Settle, to sell the home place, which is not capable of division in kind, and put the payment of the debts on that fund, and thus leave the personal estate for division amongst the children, which may be an interest bearing fund for said minors, and to this end we agree that our names may be joined in any petition or suit which may be necessary to carry out our said views, as witness our hands, this 8th July, 1895." Signed by each of the said children and distributees and their husbands. Pursuant to the said agreement Messrs. Dillard & King, attorneys, practicing in the courts of said county, at the August term, 1895 in behalf of all of said children, distributees and heirs at law. The said infants, being represented by B. C. Sharpe, Esq., theretofore appointed their next friend, filed a petition as follows:

"To the Honorable the Judge of the superior court of the county and state aforesaid: Your petitioners above named respectfully show unto the court: (1) That Mary A. Settle, the widow and the relict of the late Judge Settle, departed this life in Greensboro, N. C., intestate, in the year 1895, and leaving her surviving the following children and heirs at law, to wit: [naming them]--the last four infants without guardians, who are represented in this petition by B. C. Sharpe, specially assigned by the clerk as next friend to protect their interests in this suit, leaving at her death a considerable personal estate, consisting of household and kitchen furniture, money on hand, bank stock and choses in action, in all amounting to about $______, and leaving her house and lot in the city of Greensboro, (describing same) and being the house and lot on which Mary A. Settle had her domicile at the time of her death, and at the time of her death said intestate owed but four debts and they of small amounts, except what she was owing to her two sons, Thomas Settle and Douglas Settle, for moneys advanced by them for her during her widowhood. (2) That your petitioners believe the personal estate is sufficient to pay the debts of the intestate and all the costs and charges of administration, and so likewise they feel sure, the said house and lot if sold prudently, will produce enough to pay the same, and leave the personalty for distribution to and amongst the next of kin and heirs according to their respective rights therein. (3) Your petitioners show that they have given much reflection as to what is best to be done, having regard to the interest of all concerned and particularly to the interests of those of your petitioners who are under full age, and their deliberate conclusion is that the best thing to be done is to sell the land, and devote the proceeds to the payment of the debts and take the personal estate and distribute the same among the children according to their respective rights, some of them having been advanced to their full share therein and others partially, and still others not at all, and so believing your petitioners have executed a written agreement to be joined in this ex parte petition indicating their views on the subject, and hereunto annex the same to be taken as a part of their petition. (4) That if the personal estate be applied to pay the debts, the land will have to be divided which cannot be done, in kind, so as to make the shares valuable, and the consequence then will be, that the personal estate being all gone, the infant children aforesaid, will have no distributive interest (share) to bear interest for them and no homestead to live at, when if the debts be put on the land, each one of said infants will have a fund at interest to be used in their support. (5) Your petitioners are advised that your honor has the jurisdiction to decree a conversion of the said house and lot with money and the application of the proceeds to the payment of the debts, so as then to provide for the children and especially the infants, so that their interests in the personal estate may be productive and helpful in their support as aforesaid. Wherefore your petitioners pray your honor to decree a charge and conversion of the real estate of the late Mary A. Settle into money and direct that the payment of the debts be put upon the same, and that the personal estate be distributed in money to and amongst those entitled thereto, and such other and further relief in the premises as may be just and right."

We have set forth in full the foregoing petition, to the end that its scope and purpose may appear. At the same term of the court a decree was entered in said petition by his honor, Henry R. Bryan, judge presiding, directing a sale of the said house and lot for the purposes set forth in the petition and appointing Dr. W. P. Beall commissioner to make said sale, he being the husband of one of the petitioners. Specific directions were given in regard to the manner of conducting such sale, directing a report at the next term of the court. It is also provided in said decree that Thomas Settle and Douglas Settle, either or both, be allowed to bid for the said property, if they so desire.

At the December term, 1895, commissioner made report that he had sold the said land in accordance with the terms of the decree and that Thomas Settle was the last and highest bidder therefore at the price of $7,000 and that said sum was a full and fair price therefore. He further reported that the amount had not been paid, but that as it was the purpose of the suit to appropriate the sum to the payment of debts, he recommends that the said amount be charged to the said Thomas Settle, as administrator, and be by him accounted for in the final settlement of said estate. At the same term, his honor, Judge Starbuck presiding, a decree was made confirming the said sale and directing the defendant administrator to charge himself with the proceeds and apply and account for the same in due course of administration in paying the debts. "That he account for and distribute the excess, if any, of said purchase money, together with the personal estate, among all of the next of kin, making equality among the said next of kin by a due accounting for advancements among them, if any such there be." There was in this decree no direction that the cause be retained for other and further orders.

At the May term, 1896, of said court a petition was filed in the said cause reciting as follows: "This cause having been retained for further proceedings and decrees, the above-named parties your petitioners, would respectfully show unto the court, that Thomas Settle, as administrator of Mary A Settle, deceased, has so far administered the estate if his said decedent as to ascertain that there would be a surplus consisting of some cash, stock in Bank of Guilford of the par value of $600, in the Piedmont Bank of $500, the Wakefield Hardware Company of $1,000 at par value, and the household furniture estimated at say, $1,000 for distribution among those entitled after an account shall have been taken of advancements to and among certain of the heirs and distributees of the said Mary A. Settle." Said petition further stated that the value of said personal property was unknown to the petitioners, and that if the same would be allotted to and among them, it would be necessary to...