Avery v. . Guy

OlabksoN, J. O. S., 74, in part, is as follows: “When tbe personal estate of a decedent is insufficient to pay all bis debts, including tbe charges of administration, tbe executor, administrator or collector may, at any time after tbe grant of letters, apply to tbe Superior Court of tbe county where tbe land or some part thereof is situated, by x>etition, to sell tbe real property for tbe payment of tbe debts of such decedent,” etc. Upon tbe death of a person owing debts tbe land descends to tbe heirs at law subject to tbe payment of tbe same, after exhausting tbe personal property. Tbe heirs of tbe deceased are necessary parties to tbe proceeding. C. S., 80. It was contended by plaintiff, Carrie Avery, guardian of tbe heirs at law of W. W. Avery, tbat defendants violated tbeir timber contract with W. W. Avery. Tbat defendants cut certain timber after W. W. Avery’s. death which was not included in tbe contract. Tbe defendants set up an award under a consent order made 21 June, 1930, in tbe Xmesent cause. Ira Yance, Sam G. Smith and Yance Palmer being appointed to investigate and make an award, which was done. *154 Tbe defendants contend that “settlement of this cause of action on the basis of $4.00 per M. feet, stump age, for the amount of timber estimated and reported as aforesaid, which said offer these defendants accepted, and paid the said Yance accordingly, and took a release from him duly executed and for full value and before the filing of the complaint herein, which said release these defendants now plead in bar of the plaintiffs’ action and right of recovery herein.” The release set up, is as follows: “Whereas, the above entitled action was instituted in the Superior Court of Avery County for the purpose of collecting the balance due by E. C. Guy and Company to W. W. Avery estate on account of timber cut from the lands of the said W. W. Avery estate, under a contract or deed made before the death of the said W. W. Avery, some of said timber having been cut beyond the boundaries of said deed by mistake; and, Whereas, by consent of the parties to said action, an estimate was made of the timber so cut beyond said boundaries, said estimate having been made by Sam Smith, Ira Yance and Yance Palmer, to be 50,000 feet; and, Whereas, the said 50,000 feet so cut by mistake, added to the amount cut from the boundaries of said deed, makes a total of 388,963 feet at $4.00, making $1,555.85, on which has been paid $1,208.50, leaving a balance of $347.35. Which said amount is this day paid to Ira Yance, administrator of the estate of W. W. Avery, deceased, in full satisfaction and settlement of said matter, receipt of which, by the said Ira Yance, administrator, is hereby acknowledged. This 16 July, 1930. Ira Vance, administrator of the estate of W. W. Avery, deceased. Witness: Eugene Eller.” The plaintiff in reply says: “That Ira Y anee, acting in the capacity of administrator, has settled all of the debts of the late W. W. Avery, and the estate except his commission and expenses and about $75.00 of debts incurred in the administration thereof. That the balance of any funds collected in this cause belongs to the wards of Carrie Avery, guardian. That she was not consulted in said attempted settlement; that she did not know such attempted settlements were contemplated, and that such attempted conditional transactions between the plaintiff, Ira Yance, and the defendant, E. C. Guy, does not constitute a bar to the prosecution of this action, as the plaintiff, Carrie Avery, is advised and believes.”" If the defendants cut any timber under the contract made with W. W. Avery before his death, and had not accounted for it, then the action must be brought by the administrator of the estate, Ira Yance, and not by plaintiff Carrie Avery, guardian. *155 Tbe administrator of the estate of W. W. Ayer y, Ira Yanee, is a party plaintiff. It appears that there is a small amount of debts of the estate of W. W. Avery unpaid. The recovery in the action, if there are debts, would go to Ira Vance, administrator, to pay the debts of W. W. Avery, and any balance to Carrie Avery, guardian. As all the heirs at law of W. W. Avery, through their guardian, are parties plaintiff, and were when the settlement was made, we see no good reason to disturb the judgment of the court below. It appears in the record that those appointed in the action to estimate the timber "having been appointed by the court by the agreement of counsel in this action.” We do not think that the principle of law as set forth in Garland v. Improvement Co., 184 N. C., at p. 556, case cited by plaintiff guardian, applicable. Conceding, but not deciding, that there was error in the judgment of the court below, yet on the entire record there is not such prejudicial or reversible error for which the judgment should be set aside. In Booth v. Hairston, 193 N. C., at p. 281, speaking to the subject, is the following: “Our system of appeals is founded on public policy and appellate courts will not encourage litigation by granting a new trial which could not benefit the litigant and the result changed upon a new trial, and the nongranting was not prejudicial to his rights. Bateman v. Lumber Co., 154 N. C., p. 253; Rierson v. Iron Co., 184 N. C., p. 363; Davis v. Storage Co., 186 N. C., 676. They will only interfere therefore, where there is a prospect of ultimate benefit.’ Cauble v. Express Co., 182 N. C., p. 451.” The judgment of the court below is Affirmed.