{ "id": 8626845, "name": "MRS. JACKSIE WOLFE and Husband, J. H. WOLFE, v. M. W. GALLOWAY, Administrator of the Estate of J. M. THRASH, Deceased; MRS. CARRIE DORSETT, P. H. THRASH and Wife, OLIVE THRASH; T. O. THRASH and Wife, LULA C. THRASH; WACHOVIA BANK AND TRUST CO., Trustee, C. C. LONG and FRANCES McIVER HEDEMAN", "name_abbreviation": "Wolfe v. Galloway", "decision_date": "1937-03-17", "docket_number": "", "first_page": "361", "last_page": "367", "citations": [ { "type": "official", "cite": "211 N.C. 361" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "81 N. C., 18", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "75 N. C., 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694924 ], "opinion_index": 0, "case_paths": [ "/nc/75/0320-01" ] }, { "cite": "151 N. C., 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654391 ], "opinion_index": 0, "case_paths": [ "/nc/151/0198-01" ] }, { "cite": "208 N. C., 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613885 ], "opinion_index": 0, "case_paths": [ "/nc/208/0578-01" ] }, { "cite": "200 N. C., 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625009 ], "opinion_index": 0, "case_paths": [ "/nc/200/0620-01" ] }, { "cite": "197 N. C., 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626924 ], "opinion_index": 0, "case_paths": [ "/nc/197/0040-01" ] }, { "cite": "160 N. C., 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271092 ], "opinion_index": 0, "case_paths": [ "/nc/160/0256-01" ] } ], "analysis": { "cardinality": 716, "char_count": 17223, "ocr_confidence": 0.476, "pagerank": { "raw": 1.3838314935608152e-07, "percentile": 0.6410925887957174 }, "sha256": "253ca6c8274e888ddb53555565b674fa94b76cce42eb438702d763eed67e0f3e", "simhash": "1:c1e465cd12131cab", "word_count": 2989 }, "last_updated": "2023-07-14T22:38:14.990140+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. JACKSIE WOLFE and Husband, J. H. WOLFE, v. M. W. GALLOWAY, Administrator of the Estate of J. M. THRASH, Deceased; MRS. CARRIE DORSETT, P. H. THRASH and Wife, OLIVE THRASH; T. O. THRASH and Wife, LULA C. THRASH; WACHOVIA BANK AND TRUST CO., Trustee, C. C. LONG and FRANCES McIVER HEDEMAN." ], "opinions": [ { "text": "Clarkson, J.\nN. C. Code, 1935 (Michie), sec. 139, is as follows: \u201cWhere any parent dies intestate, who has in his or her lifetime given to or put in tbe actual possession of any of bis or ber children any personal property of wbat nature or kind soever, sucb child shall cause to be given to the administrator or collector of the estate an inventory, on oath, setting forth therein the particulars by him or her received of the intestate in his or her lifetime. In case any child who had, in the lifetime of the intestate, received a part of the estate, refuses to give such inventory, he shall be considered to have had and received his full share of the deceased\u2019s estate, and shall not be entitled to receive any further part or share.\u201d Thompson v. Smith, 160 N. C., 256; Paschal v. Paschal, 197 N. C., 40.\nFrom the facts found by the referee, we think the plaintiff Mrs. Jacksie Wolfe was liable to account for advancements. The referee found that \u201cThe mother was dead and the plaintiff, the granddaughter, stood in the place of her mother and was entitled to such funds as the mother might receive, that it was his intention to charge as advancements such items enumerated above. The major part of these charges were made against Mrs. Wolfe for, expenses incurred after she was eighteen or twenty years of age, and the others were principally for advantages in the way of schooling. No charges were made for expenses of rearing the plaintiff.\u201d\nThen again, it was agreed that the advancements found due by the various heirs at law of J. M. Thrash, deceased, \u201cshall be final and binding on all parties hereto, with respect to any and all advances.\u201d\nThe plaintiff Mrs. Jacksie Wolfe is estopped to make the contention she now makes. In her brief she says : \u201cPlaintiffs were perfectly willing to abide by the judgment of the court and did not want to appeal, but inasmuch as the defendant appellants insisted on bringing the case to the Supreme Court, Mrs. Wolfe desires to present her contentions to the court in regard to this.\u201d\nThe defendants made a motion to dismiss plaintiffs\u2019 appeal \u201cThat under Eule 28 of Practice in the Supreme Court, plaintiff appellants were required to file their brief by noon 13 February, 1937, and they failed to do so until 19 February, 1937.\u201d The plaintiffs\u2019 appeal is dismissed under the rule.\nAs to defendants\u2019 appeal: They contend \u201cthat the jurisdiction in this action was limited to an accounting for the advancements to the various heirs, and a determination of the respective shares of said heirs in the estate left.\u201d It will be noted that the action was brought in the Superior Court (1) For accounting for advancements; (2) \u201cThat commissioners be appointed to divide and allot to each of the heirs of J. M. Thrash, deceased, their respective shares of the real estate heretofore described, such allotment to take into consideration the advancements found to have been made to each of the said heirs.\u201d\nThe action for an accounting is an equitable matter and was instituted in the Superior Court. Art. IV, sec. 1, Const, of N. C., reads: \u201cThe distinctions between actions at law and suits in equity, and the forms of all such actions and suits, shall be abolished; and there shall be in this State but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action,\u201d etc. See In re Estate of Wright, 200 N. C., 620 (628); Reynolds v. Reynolds, 208 N. C., 578 (624).\nIn Sumner v. Staton, 151 N. C., 198 (201-2), it is said: \u201cThere is another principle of equity jurisprudence equally well founded, and that is that equity will not suffer a right to be without a remedy. 'And it may be further observed,\u2019 says Mr. Bispham, 'that equity will not only not support a right to be unaccompanied by a remedy, but it will make the remedy, when applied, a complete one.\u2019 This learned and accurate writer states another rule of equity courts which fits exactly such a condition as this case presents: 'When a court of chancery acquires jurisdiction for any purpose, it will, as a general rule, proceed to determine the whole cause, although in so doing it may decide questions which, standing alone, would furnish no basis of equitable jurisdiction.\u2019 Bispham (6th ed.), sec. 37. To the same effect are our own decisions. Oliver v. Wiley, 75 N. C., 320; Devereux v. Devereux, 81 N. C., 18.\u201d\nIn 20 R. C. L., pp. 773-774, is the following: \u201cIn this country, also, the manifest hardship arising from the division of property of an im-partible nature has been almost universally avoided by statutory provisions to the effect that any person entitled to a partition shall be entitled to have the premises sold, if they are so situated that partition cannot be made, or that it would be manifestly to the prejudice of the parties if the property were not sold rather than partitioned, and some of the American courts have held that equity has such power, independently of statute. Partition by sale is a matter of absolute right when the conditions prescribed by the statute to authorize a sale are found to exist, but the burden of proof to establish the necessary requisites to a sale of land rather than a partition is on the party alleging the necessity and advisability of such sale; and it has been held that a finding that a sale is necessary, not based on the consent of the parties or the report of commissioners or on evidence heard by the chancellor, will not support the order of sale.\u201d\nN. C. Code, 1935 (Michie), sec. 3233, is as follows: \u201cWhenever it appears by satisfactory proof that an actual partition of the lands cannot be made without injury to some or all of the parties interested, the court shall order a sale of the property described in the petition, or any part thereof.\u201d\nTbe defendants contend \u201cIn the absence of any allegation, proof, or finding that an actual partition cannot be had without such injury, the court has no jurisdiction to order a sale.\u201d\n\u00a5e think by analogy to the statute and the fact that no evidence was heard by the chancellor or facts found to show a right to sell for partition, the cause must be remanded. We see no other prejudicial error in the record.\nThe intelligent and careful referee, in his report, says: \u201cThat because of the involved nature of the estate and the innumerable complicated questions of fact such as the proper application of various funds paid by the decedent, J. M. Thrash, to the various heirs and various other questions of like kind, your referee, when the evidence had proceeded practically to its completion, clearly saw that an amicable settlement would be to the best interest of all concerned, and with that thought in mind, used his best efforts (perhaps went too far) to get the parties to agree upon a settlement. Tour referee felt that this was particularly desirable since this was a family matter and hence involved more than the actual value of the property in question,\u201d etc. No agreement could be had and one of the parties \u201cinsisted that the referee render a decision on the evidence.\u201d\nThe defendants, in their brief, say: \u201cBy agreeing that the referee should act as arbitrator the parties enormously restricted what would otherwise have been almost endless litigation, but of course in so doing they placed very great powers in the hands of the arbitrator. Taking the testimony consumed weeks. The record was more than 700 pages. Over a thousand exhibits were offered,\u201d etc. We might say that the printed record is hard to read and is not in accordance with our rules, and is a jumbled record. .\nIn the record we find error, but on the whole record we think the learned judge in the court below \u201cdispensed with law and administered justice.\u201d We must follow the law. For the reasons given,\nError and remanded.", "type": "majority", "author": "Clarkson, J." } ], "attorneys": [ "Johnston & Horner for plaintiffs.", "B. M. Wells and Ford, Goxe & Garter for P. H. Thrash et al.", "DuBose. & Orr for T. 0. Thrash et al.", "Ralph H. Ramsey, Jr., for Mrs. Carrie Dorsett." ], "corrections": "", "head_matter": "MRS. JACKSIE WOLFE and Husband, J. H. WOLFE, v. M. W. GALLOWAY, Administrator of the Estate of J. M. THRASH, Deceased; MRS. CARRIE DORSETT, P. H. THRASH and Wife, OLIVE THRASH; T. O. THRASH and Wife, LULA C. THRASH; WACHOVIA BANK AND TRUST CO., Trustee, C. C. LONG and FRANCES McIVER HEDEMAN.\n(Filed 17 March, 1937.)\n1. Descent and Distribution \u00a7 12 \u2014 Grandchild held answerable for advancements under facts of this case.\nIntestate\u2019s grandchild, a daughter of intestate\u2019s deceased daughter, was charged with advancements for sums paid by intestate for her schooling and expenses incurred after she was eighteen or twenty years old, but no charge was made for expenses of rearing the grandchild. Held: Upon the facts found by the referee the charge of advancements was correct. N. C. Code, 139.\n2. Reference \u00a7 8\u2014\nWhere the parties agree that the findings of fact of the referee and his conclusions in regard to advancements found due by the various heirs at law should be conclusive and that exceptions might be filed only to his conclusions of law, an heir is estopped to contend that the advancements charged against her by the referee were not correct.\n3. Appeal and Error \u00a7\u00a7 26, 31d\u2014\nPlaintiff appellant\u2019s brief was filed six days after the time required, and plaintiff\u2019s appeal is dismissed upon appellees\u2019 motion under Hule of Practice in the Supreme Court, No. 28.\n4. Actions \u00a7 5\u2014\nThe distinction between actions at law and suits in equity is abolished. Art. IV, sec. 1.\n5. Equity \u00a7 3 \u2014 Equity may order sale of property for partition where necessary to complete determination of equitable cause.\nWhere a court of equity acquires jurisdiction for any purpose it will proceed, as a general rule, to determine the whole cause, and where an accounting is demanded, which is an equitable matter, the court may proceed to order the sale of the property for partition between the parties in accordance with their rights as determined by the accounting, where such procedure is necessary to determine the cause, equity having jurisdiction to order a sale for partition independent of statute, although it will follow the analogous statutory provisions.\n6. Partition \u00a7 5 \u2014 Necessity of sale for partition must be shown by party demanding the remedy.\nProperty may be sold for partition where actual partition cannot be had with justice to all the parties, but the burden is on the party seeking sale for partition to show necessity therefor, N. G. Code, 3233, and where sale for partition is decreed by the court without hearing evidence or finding facts to show the right to sell, the cause will be remanded.\nAppeal from Sink, J., at October Term, 1936, of TeaNsylvaNta.\nError and remanded.\nJ. M. Tbrasb died intestate on 23 August, 1930, a resident of Transylvania County, N. C. M. W. Galloway is the duly qualified and acting administrator of bis estate (succeeding J. H. Pickelsimer, who resigned). At the time of his death, the said J. M. Thrash left surviving him the following children: Mrs. Carrie Dorsett, P. H. Thrash, and T. O. Thrash, and one grandchild, Mrs. Jacksie Wolfe (plaintiff in this action), who is the only surviving child of Rosa Thrash McGaha, a daughter of the said J. M. Thrash, and said children and grandchild constitute all of the heirs at law of the said J. M. Thrash. At the time of his death, the said J. M. Thrash left a large and extensive estate, comprised both of personalty and realty. Prior to his death, J. M. Thrash, deceased, had made advancements to his children. As heirs at law of the said J. M. Thrash, Mrs. Jacksie Wolfe, Mrs. Carrie Dorsett, P. H. Thrash, and T. 0. Thrash are owners of the property as tenants in common, subject to his debts and to such advancements as each has received from the said J. M. Thrash.\nPlaintiffs pray: \u201c(1) That an accounting be had by and between all of the parties hereto, to determine what, if any, advancements the heirs of J. M. Thrash have received; (2) That judgment be rendered in accordance with, the result of such an accounting; (3) That commissioners be appointed to divide and allot to each of the heirs of J. M. Thrash, deceased, their respective shares of the real estate, such allotment to take into consideration the advancements found to have been made to each of the said heirs; (4) Eor the costs of this action, to be taxed by the clerk, and such other and further relief as to the court may seem just and proper.\u201d\nM. W. Galloway, administrator, answers, and, after setting forth certain facts, prays \u201cthat the action be dismissed as to him.\u201d\nMrs. Carrie Dorsett answers and, after setting forth certain facts, prays \u201cthat an accounting be had under the terms and provisions of the arbitration agreement herein set forth to determine what, if any, advancements the heirs of J. M. Thrash, deceased, have received.\u201d\nThe defendants set up a certain arbitration agreement, which was afterwards nullified by the parties and a reference agreed upon.\nP. H. Thrash answers and, after setting forth certain facts, prays: \u201c(1) That the lands described in the petition herein be divided between the plaintiff and P. II. Thrash and the other heirs in accordance with said contract and agreement referred to in the 8th paragraph of the answer of these defendants; (2) That under said contract mentioned in paragraph seven of these defendants\u2019 further answer that the advancements be ascertained thereunder; (3) That by consent, under said contract or under order of court that the said lands be divided and partitioned between the heirs at law as their interest may appear; (4) That under a proper order of court that M. W. Galloway, as administrator, be required to account to the court and the heirs at law of J. M. Thrash, deceased, for any amount which should be rightfully charged against him as such administrator upon issues to be submitted by the court or under a reference ordered by the court; (5) That M. W. Galloway be required forthwith to make his final settlement as such administrator as provided by law; (6) Eor such other and further relief as in the opinion of the court is just, right, and proper.\u201d\nT. 0. Thrash answers and, after setting forth certain facts, prays: \u201c(1) That plaintiffs recover nothing against these defendants; (2) That an accounting be had between the parties according to the intention of the said J. M. Thrash and the agreement between his heirs; (3) That the administrator be required to file his final accounting and make distribution of such funds as he may have; (4) That the estate be partitioned according to the respective rights of the parties; (5) Eor such other and further relief as may be deemed meet and proper.\u201d\nC. 0. Long and Prances Mclver Hedeman filed separate answers and, after setting forth certain facts, they allege that they have a deed of trust to secure certain notes of T. G. Thrash on his interest in the land. \u201cThat the said lands of J. M. Thrash should be partitioned and divided among the heirs, subject to the liens and encumbrances of record, and that the administrator should be required to file his final accounting.\u201d They pray the court \u201c(1) That they recover nothing against this defendant; (2) That the administrator be required to file his final accounting and be discharged; (3) That the estate be partitioned according to the respective rights of the parties; (4) For such other and further relief as may be meet and proper.\u201d\nAt April Term, 1935, the matter was referred to G. Lyle Jones.\nThe following agreement appears in the record: \u201cIt is agreed by and between all the parties to this action, except M. W. Galloway, administrator, that the findings and conclusions of the referee heretofore appointed in the above cause as to advances made to the various heirs at law of J. M. Thrash, deceased, shall be final and binding on all parties hereto with respect to any and all advances. Either party may except only to conclusions of law made with respect to his findings of facts in the above. Mrs. Jacksie Wolfe and J. H. Wolfe, by J. H. Horner, Jr., attorney; P. H. Thrash, by J. F. Ford and R. M. Wells; Carrie Dorsett, by Ford & Wells; John DuBose, attorney for T. 0. Thrash, Lula Thrash, 0. C. Long, Frances Melver Hedeman, and Wachovia Bank and Trust Co., trustee.\u201d\nThe referee made careful and detailed findings of fact and conclusions of law. The plaintiffs and defendants excepted to certain conclusions of law. The court below rendered the following judgment: \u201cNow, therefore, it is ordered, adjudged, and considered that the findings of fact contained in the referee\u2019s report be and the same hereby are confirmed, and all exceptions thereto are hereby overruled; and it is further ordered, adjudged, and considered that the conclusions of law contained in the referee\u2019s report numbered 1, 2, and 3, are hereby confirmed, and all exceptions to said conclusions of law are hereby overruled; and it is further ordered, adjudged, and considered that conclusion of law No. 4 be and the same hereby is amended to read as follows ;\u201d and ordered the land to be sold by a commissioner, and how the proceeds should be distributed. All the parties, plaintiffs and defendants, heirs at law of J. M. Thrash, excepted, assigned error and appealed to the Supreme Court.\nJohnston & Horner for plaintiffs.\nB. M. Wells and Ford, Goxe & Garter for P. H. Thrash et al.\nDuBose. & Orr for T. 0. Thrash et al.\nRalph H. Ramsey, Jr., for Mrs. Carrie Dorsett." }, "file_name": "0361-01", "first_page_order": 427, "last_page_order": 433 }