Tayloe v. Tayloe

• Decision Date: 16 February 1891
• Citation: 12 S.E. 836,108 N.C. 69
• Parties: TAYLOE v. TAYLOE.
• Court: North Carolina Supreme Court

12 S.E. 836

108 N.C. 69

TAYLOE v. TAYLOE.

Supreme Court of North Carolina

February 16, 1891

Appeal from superior court, Hertford county; WHITAKER, Judge.

It appears that shortly before the 25th day of August, 1877, W S. Tayloe died intestate in the county of Hertford, and on that day the defendant was appointed and qualified as administrator of his estate. The plaintiff, his brother, and the surviving widow of his intestate were the distributees of the estate; and this action was begun on the 2d day of April 1888, to compel an account, settlement, and distribution of the estate in the hands of the defendant as to the plaintiff. The pleadings raised numerous issues of fact. In the course of the action it was referred to a referee to take and state an account, and make report thereof, etc., all which was done. To the report the plaintiff filed numerous exceptions as did also the defendant. These exceptions were disposed of by the court below, except in two respects. The court charged the defendant with a rate of interest, to which he excepted. This exception was abandoned in this court. The court also charged the defendant with $333.33, the plaintiff's share of the face value of a certificate for $1,000 of the stock of the Chowan Female Baptist Institute, and the defendant excepted. "With respect to this exception, the court finds the following facts: One share of this stock, of the face value of $1,000, went into the hands of defendant as administrator of W. S. Tayloe. After two years from defendant's qualification as administrator an order was duly made by the clerk of Hertford superior court, under section 1412 of the Code, directing the sale of certain evidences of debt belonging to intestate, Tayloe, among which this stock was described. Under said order the same was offered for sale at public biddings, and the defendant honestly and earnestly tried to induce bidders and secure purchasers, but without success, and it was finally knocked off to him at $103. After this he tried to get other parties to take it at that sum for the benefit, and failed, and finally charged himself with the amount, and surrendered the stock to trustees appointed by the Chowan Baptist Association to reorganize and establish the Chowan Female Baptist Institute. He received no pecuniary benefit from said stock or benefit of any kind, except that he was allowed to send one indigent young lady to said institution free of charge, whose tuition would have amounted to $62.50. She was in no way related to him. The total stock was $10,500. This stock had no pecuniary market value whatever, and the defendant acted in the matter in good faith, and, as he believed, for the best interest of the estate. The stock was at the time believed by the defendant to be insolvent, and without pecuniary value. The property consisted of the college buildings and grounds, constructed and arranged for college purposes, and was purchased and had been used by the Baptist denomination for many years for a female school. This is located in the village of Murfreesboro, and is worth $20,000 to $25,000, and pays an annual rental of $600, which has to be applied to repairs of said property. That in 1868 the title to said property was held by trustees for the Chowan Baptist Association. At that time the institution was much involved in debt, and the association directed and authorized said trustees to convey the property to a joint-stock company upon the condition that such stock company would pay the outstanding debts of the institution, and would reconvey the property to said association upon its repayment of the money expended by such stock company in paying said debts. The debts amounted to about $10,500, and a joint-stock company was accordingly formed, with a capital stock of $10,500; and the amount of stock held by each stockholder represented the amount of said debts paid by such stockholder. The $1,000 of stock owned by W. S. Tayloe, and sold by the defendant administrator February 7, 1881, was a part of said capital stock. At the time of said sale the owners of the stock in said company, except two, had voluntarily surrendered their stock to trustees, as heretofore stated, without demanding or receiving repayment of the money expended by them in paying the debts of the institution. Of these two stockholders, one, holding $500 of stock, under an agreement with the trustees, was permitted to consume the whole of his stock in literary tuition for his own children; and the other, holding the same amount, consumed $440 thereof under the same agreement, and then surrendered the balance. When the stock of W. S. Tayloe was sold it was unpaid, and there was no other stock then outstanding. The facts, as above stated during the argument before his honor, were admitted by both the plaintiff and defendant to be true, and the court so find. Upon this evidence the court held that the stock was solvent, and could by due diligence have been collected in full, and charged the defendant with the same as above stated. There was judgment for the plaintiff, and the defendant, having excepted, appealed to this court.

W. D. Pruden, for appellant.

Winborne & Bro., for appellee.

MERRIMON C.J., (after stating the facts as above.)

It appears by the record that each of the parties waived his right to trial by a jury. It was thus consented by the parties that the court might find the facts, and we are not at liberty to review the findings of fact by a tribunal thus selected by...