Fidelity Trust Co. v. Walton

CoNNOB, J. The defendant in this proceeding is the executor of a will which has been duly probated and recorded in this State. He is now engaged in the administration of the estate of his testatrix in accordance with the provisions of said will, and subject to the jurisdiction of the courts of this State. On his appeal to this Court from the judgment of the Superior Court directing him to deliver to the petitioner, as guardian of its wards, who are nonresidents of this State, personal property bequeathed to them by said will, to the end that- said property may be removed by the petitioner from this State to the State of Pennsylvania, where said wards reside, and where the petitioner has duly qualified as their guardian, the defendant suggests that the relief sought in behalf of said nonresident wards can be had only under the provisions of C. S., 4020, et seq.; that such relief cannot be had in this proceeding which was begun under the provisions of O. S., 2195, et seq. We are of opinion that this proceeding, upon the facts alleged in the petition, was properly begun under the provisions of C. S., 2195, et seq., and that *794 there was no error in the judgment of the Superior Court to that effect. The petitioner was well advised as to the procedure by which it has sought relief upon the facts alleged in its petition. Its wards reside in the State of Pennsylvania; they are entitled to personal property now in this State; this personal property is in the hands of defendant, the executor of the testatrix, by whose will the said property was bequeathed to said ward's. The property is not vested in a trustee residing in this State, who holds the same for beneficiaries residing in another State. C. S., 4020, et seq., are not applicable to the facts of this case. The procedure in this case conforms to the requirements of C. S., 2195, et seq., and is approved. Cilley v. Geitner, 183 N. C., 528, 111 S. E., 866. The only other question raised by the defendant on his appeal to this Court, and presented for decision, is whether there was error in the order of the judge of the Superior Court that the defendant as executor transfer, turn over 'and deliver to the petitioner as guardian, for each of its wards, forty-one shares of the capital stock of the Cleveland Trust Company of Cleveland, Ohio, in settlement of the interest of said ward in the total number of shares of said capital stock, in his hands, under item 22 of the last will and testament of Nellie Standard Carr. The defendant suggests that it is his duty as executor to convert the 410 shares of said capital stock which are bequeathed by said item to the residuary legatees referred to therein, into money, and to pay to each of said legatees his share in money and not in stock. While ordinarily it is the duty of an executor to convert personal property, which passes under a residuary clause in a will, to two or more legatees, share and share alike, into money, and to pay to each of said legatees his share in money and not in property, where, as in the instant case, the property to be distributed consists of stocks or securities whose value in money at the date of the settlement can be readily ascertained, and the court having jurisdiction of the administration of the estate, finds that it is to the best interest of all the legatees that their shares be paid in stock or securities, rather than in money, the court has the power to authorize the executor to settle with the legatees, by transferring and delivering to each of said legatees stock or securities of the value in money of his share, rather than by paying to him money derived from the sale by the executor of the stocks or securities. University v. Borden, 132 N. C., 477, p. 502, 44 S. E., 47, 1007, 24 C. J., 485, sections 1313 and 1314. Such settlement made by the executor with the.legatees, pursuant to an order of the court, will fully protect the executor against any and all claims thereafter made by the legatees or those claiming under him. *795 Tbe fact tbat tbe legatees are minors at tbe date of tbe settlement is immaterial, where tbe settlement is made with tbeir guardian or guardians, and is approved by tbe court having jurisdiction of tbe administration of tbe estate. Such settlement will protect tbe executor from any and all claims thereafter made by said legatees or by any one in tbeir behalf, or claiming under them. Where tbe guardian in accepting said settlement acts in good faith, and with tbe approval of tbe court having jurisdiction of tbe estate of bis ward, be will likewise be protected under tbe law of this State. See Sheets v. Tobacco Co., 195 N. C., 149, 141 S. E., 355. We find no error in tbe judgment of tbe Superior Court. Defendant is amply protected by its provisions. Tbe judgment is Affirmed.