Williard v. Weavil
| Decision Date | 08 January 1943 |
| Docket Number | 746. |
| Citation | 23 S.E.2d 890,222 N.C. 492 |
| Parties | WILLIARD et al. v. WEAVIL et al. |
| Court | North Carolina Supreme Court |
This action was brought by the plaintiffs to recover from the estate of William Yancey Swaim, deceased, trust funds alleged to have been left to them by the will of Lewis L. Smith. They filed their complaint, from which we summarize the facts alleged. The will is as follows:
L.L Smith died July 23, 1924, having disposed of all his real estate by deed, with the exception of the tract allotted to the widow. Mary Jane Smith Swaim, the daughter whose distributive share in the property of the decedent was limited to a life estate, with the remainder over to the other children named in the will, died on the 27th day of May, 1927, leaving a will in which she devised and bequeathed all her property to her husband, William Yancey Swaim, naming him as executor.
It is alleged that during the life of Mary Jane Smith Swaim funds from the L.L. Smith estate, allegedly trust funds of the plaintiffs, to the extent of $3,450 had been paid to her by the executors of L.L. Smith's will, which funds had been deposited in the bank; that during the lifetime of the said Mary Swaim, her husband, W.Y. Swaim, by undue influence and by virtue of his marital relation, caused the said Mary Swaim to surrender possession of the trust funds to him; and that he became possessed of the remainder of the trust funds by virtue of his office as executor of her will, and acknowledged receipt as her executor of moneys aggregating $2,141.11.
It is further alleged that William Yancey Swaim used the trust funds for his own benefit from the time he obtained possession of them until his death on April 30, 1939; and that he had never accounted for any part of them, or for the interest or other income derived therefrom, but had never by words or conduct repudiated the trust.
That portion of the lands allotted to the widow of L.L. Smith was sold by Smith's executors and converted into cash upon her death, which occurred August 2, 1928, and certain of the real estate was not disposed of by the said executors until April 23, 1934; that the said real estate was disposed of by the executors, pursuant to court order, by executing and delivering a deed of conveyance to the plaintiffs and Elwood L. Smith as tenants in common, and has never been fully converted into cash; that the executors of the will of Lewis L. Smith did not file a final report as such executors until May 19, 1934.
William Yancey Swaim left a will, in which no provision was made for the payment of the trust funds to the plaintiffs and the defendant Elwood L. Smith.
Upon this the plaintiffs demanded judgment against the executors of William Yancey Swaim for the sum of $2,957.14, with interest thereon from the 7th day of May, 1927 (the date of Mary Swaim's death), until paid and for other and further relief.
The case came on for hearing at the May 25, 1942, term of Forsyth Superior Court, and defendants demurred ore tenus to the complaint for that it failed to state a cause of action; and thereupon the following judgment was rendered:
From this judgment the plaintiffs, appealed, assigning error.
Whitman & Motsinger, of Winston-Salem, for plaintiffs-appellants.
Wm. H. Boyer and Ingle & Rucker, all of Winston-Salem, for defendants-appellees.
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