In Re Estate of Mizzelle

Clarkson, J. There was dispute as to who were entitled to certain funds in the hands of N. B. Marriner, administrator of the estate of H. W. Mizzelle. The administrator urges “the right of this trustee to claim the consideration of the court and have his duty outlined.” We think the allegation of the administrator comes within the rule entitling him to advice. In Freeman v. Cook, 41 N. C., 373 (378), Nash, J., said: “The chancellor is the only safe and secure counsellor to trustees.” The same principle applies to executors and administrators. Bank v. Alexander, 188 N. C., 667. The question involved: Where all of the uncles and aunts of intestate are dead at time of intestate’s death and first cousins are the closest kin of intestate, is the personal estate of intestate to be divided one part to each living first cousin and one part to those that legally represent each dead first cousin? We so hold. The court below was of the opinion and so held, and this we think is correct. N. C. Code, 1935 (Michie), see. 137, is as follows: “The surplus of the estate, in case of intestacy, shall be distributed in the following *369 manner, except as hereinafter provided: (5) If there is neither widow or children, nor any legal representative of the children, the estate shall be distributed equally to every of the kin of the intestate, who are in equal degree, and those who legally represent them.” In Ellis v. Harrison, 140 N. C., 444, Alexander Harrison left him surviving as his next of kin Willie and Mary Burt Harrison, two children of a brother who had died before the intestate, and Alexander Brown and five other children of a sister who had also died before the intestate. The two children of the deceased brother claimed that the distribution of the estate should be per stirpes and the six children of the deceased sister contended that such distribution should be per capita, and this was the single question presented and decided by the Court. The court below gave judgment that the distribution be per capita, and the defendants William and Mary Burt Harrison excepted and appealed. At page 445 the Court said: “It will he noted that the fund consists solely of personalty and that the claimants at the time of the intestate’s death were and are now all in equal degree — the next of kin of said intestate. In such case our statute of distributions (Revisal, sec. 132, sec. 137 [5], supra), and the uniform construction put upon it by our Court require that the fund shall be distributed per capita. Skinner v. Wynne, 55 N. C., 41. Representation in this kind of property, when allowed, is only resorted to when it is necessary to bring the claimants to equality of position as next of kin. It is otherwise as to realty.” We do not think Moore v. Bankin, 172 N. C., 599, is contrary to the position here taken. For the reasons given, the judgment of the court below is Affirmed.