Transcript of Record — McCullough v. Smith

SUPREME COURT OF /THE UNITED STATES

REPOS OS ens one CET TET, PL Se TC

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>

| OCTOBER TERM, 1933

‘~ No. 1096

- LIZZIE MAY McCULLOUGH, EXECUTRIX OF THE

; ESTATE OF IDA REID, DECEASED, PETT.

TIONER,

vs.

W. M. SMITH, ADMINISTRATOR OF THE ESTATE |

OF MOSES REID, DECEASED

ON PETITION FOR A WRIT or CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NORTH CAROLINA

INDEX

| Original Print

Proceedings in Supreme court of North Carolina............ 1 1

PEO eynenteivcenssnasbectenatsbaci ties pO ecines 1 1

Record from superior court of Mecklenburg County........ 1 1

Application for declaratory judgment................. 1 1

ExhiMit—Will of Mra. Ida Reld........2.......... 4 4

IE rekiciidsnencasiacsc. co: eeisau ices as 6 5

PENNE MOMMPKAS Sai Ashaicnsivadarniteiciic licks 9 8

Exception and assignment of error................ enee ¥ 8

: Agreement as to case on SPOR need sone sents nc. Avsinan 10 9

p) Docket e0tfles.....0...c.e0.cecesss.0... eaten oun ee 10

"Opinion, Brogden, J.................... ind piven Ad ibe 2 8612

a

Bente? sme Poms >

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[fols.a & 1]

IN SUPREME COURT OF NORTH CAROLINA, FOUR-

TEENTH DISTRICT, FALL TERM, 1933.

: No. 399 ©

In the Matter of the Estate or Moses Rem, Deceased E

Before Cowper, J., November. 14, 1932, Special Term,

Mecklenburg Superior Court—Executrix of the Estate

of Ida Reid, Deceased, Appealed

This is an appeal by the executrix of the estate of Ida

Reid, deceased, from the judgment entered in the cause

upon the hearing of the following petition of W. M. Smith,

Administrator of the estate of Moses Reid, deceased, for a

declaratory judgment directing him in his administration

of the estate, to the end that he may distribute the assets

of the estate in accord with the law:

In Superior Court or Meckitensure County

APPLICATION FOR DECLARATORY JUDGMENT

To Hon. James M. Yandle, Clerk Superior Court for Meck

lenburg County, North Carolina: .

W. M. Smith would respectfully show to the Court the

facts hereinafter set forth, and upon such statement of

facts he respectfully requests that the Clerk of the Supe-

rior Court for Mecklenburg County forward the papers in

this proceeding to the Judge Presiding over the Superior

Courts of Mecklenburg County, to the end that a Declara-

tory Judgment may be rendered in this cause as provided

in the Uniform Declaratory Judgment Act, Chapter 102,

Public Laws 1931. : :

Statement of Facts

1. W. M. Smith is the duly qualified and acting admin-

[fol. 2] istrator of the estite of Moses Reid, deceased, col-

ored soldier in the United States Army in the World War.

2. That as such administrator, he has received from the

Bureau of War Risk Insurance the sum of $6630.50 as the

1—1096 , eee EL THG

amount due the estate of the said Moses Reid from a policy

of War Risk Insurance obtained by the said Moses Reid

while in the United States Military Service; that the afore-

said sum represents the balance due after the death of his

father and his mother, who were beneficiaries named in his

policy; and that the said sum is now held by the aforesaid

administrator subject to distribution to those entitled to

the same under the law.

' 3. That the said Moses Reid died, intestate, and without

leaving a wife or child or issue of a child, on August 23,

1920; that his father, Adolphus Reid, died November 22,

1926; and his mother, Ida Reid, died February 22, 1932;

that the father and the mother were named in the policy as

beneficiaries; and that the estate of the father is repre-

sented by Elijah Reid, who has been duly appointed admin-

istrator, and is acting in such capacity; and the estate of

the mother is represented by Lizzie May McCullough, who

was named executrix in the will of Ida Reid, and is now

acting in such capacity; that both the administrator of the

father’s estate and the executrix of the mother’s estate

have furnished bonds with approved sureties.

4. That a real controversy has developed between the

sons and the daughter of the said Adolphus Reid and Ida

Reid over the distribution of the assets of the estate of

Moses Reid now in the hands of your petitioner; that the

basis of the controversy is partly due to the fact that prior

to her death Ida Reid executed a paper writing purporting

to be a will, and which has been probated as a will by the

said Lizzie May McCullough, who is therein named as sole

devisee and who is therein appointed executrix; that the

three sons of the said Ida Reid have filed a Caveat to the

{fol. 3] said purported will, the said caveators being Ross,

Elijah and Adolphus Reid, who, with their sister, Lizzie

May McCullough, are all of the next of kin and heirs of the

said Ida Reid and the said Adolphus Reid. 3

‘5. That-the funds in the hands of your petitioner are not

subject to claims of creditors under the Act of Congress

ereating a War Risk Insurance, but are subject to distri--

bution to those persons who are — to the same under

thelaw e

“6. That the paper writing above bsiithell to and which

purports to be the last will of Ida Reid, a copy bf which is ies

2

y derived from the W

life of Moses Reid, whose estate your

tering; that approximately Four Thousand Dollars had

accrued to the estate of Ida Reid prior to her death in the

form of monthly installments, none of which she recéived

in her lifetime, but all of which have

Wherefore, your petitioner seeks to have rendered for

his guidance a Declaratory duidgment as provided in Public

1. Did Ida Reid. have an interest in or right to any part

of the funds in the hands of your petitioner that she could

devise?

eestates under consideration,

W. M. Smith, Administ

4

Exutstt To APPLICATION

Will of Mrs. Ida Reid, North Carolina, Mecklenburg

County, City of Charlotte

Will

I, Ida Reid, of 318 Star Street, of the City of Charlotte,

of the aforesaid County and State, being of sound and dis-

posing mind, but considering the uncertainty of my earthly

existence, do make and declare this my last Will and

Testament.

1. My executor, hereinafter named, shall give my body

a decent burial and pay all funeral expenses, together with

my just debts, out of the first monies which may come into

her hands, belonging to my estate.

[fol.5] 2. I give, devise and bequeath all of my property

to my beloved daughter, Lizzie May McCullough, of the

above aforesaid County and State.

3. I devise and bequeath all property that I may be

entitled to, from any and all persons, including my son,

Moses Reid; who died about 1920 or 1921, that. may come

into my legal possession after my death, to my beloved

daughter, Lizzie May McCullough, of the aforesaid county

and state. :

4. I devise and bequeath all of my property, of all kinds,

to my daughter, ‘Lizzie May McCullough, simply because,

during my recent years of illness, my beloved daughter,

: Lizzie May McCullough, has taken cate of-me in a very

splendid manner, in fact, I have made my home with her.

5. In case Lizzie May McCullough does not survive me,

at my death, then it is my wish and desire, and I do hereby

‘ise and bequeath at my estate, of all kinds, to her chil-

3 Ross

“have other ‘children

“Reid, Adolp nburg

‘eae SA Mp

at p

li resent, to-wi

an ‘Reid, all of

“net ed a Gf

N :

R oe. .

7. I hereby constitute and appoint my beloved daughter,

Lizzie May McCullongh, my lawful executor to all intents

and purposes, to execute this-my last Will and Testament,

without bond, according to the true and intent meaning of

the same, and every part and.clause thereof, hereby revok-

ing and declaring utterly void all other Wills and Testa-

ments by mé, heretofore made.

In witness whereof, I, the Rap y we do hereunto set

my hand and seal, this the 19th day of February, 1932.

TT > (Seal)

Signed, sealed, published and declared by-the said Ida

Reid to be her last Will and Testament, in the presence of

us, who at her request, and in her presence, and in the pres-

[fol. 6] ence of each other, do subscribe our names as wit-

hesses thereto.

No answers were filed to the petition.

Upon hearing the petition and argument of counsel, ‘all

parties in interest having been represented at the hearing,

His Honor, G. V. Cowper, J udge Presiding, entered the fol-

lowing judgment:

In Superior Court or MECKLENBURG County

JUDGMENT

This cause coming on for hearing before Hon. G. V.

Cowper, Judge Presiding, at a Special Term of the Supe-

rior Court for Mecklenburg County, and being heard upon

the petition of W. M. Smith, Administrator of the Estate

of Moses Reid, a deceased soldier of the United States in

the World War; and it appearing that all parties in interest

were represented at the hearing, the executrix of the estate

of Ida Reid, mother of the deceased soldier, being repre-

sented by Mr. J. H. McLain, and the administrator of the

estate of the father of said deceased soldier, Adolphus Reid,

being represented by. Mr. Wade H. Williatus ; Any being

agreed by all parties that the following facts may found

wing

by the Court, and the Court thereupon finding the followin;

facts to betrue; to-witi ©

| “LL Moses Reid, d

«

eid, deceased, died intestate, unmarried in

Mecklenburg County on Ang. 23, 1920, leaving him sur-

6

#iving his father, Adolphus Reid, and his mother, Ida Reid;

and that at the date of his death he held a policy of War

Risk Insurance in the amount of $10,000.00, and that

Adolphus Reid, his father, and Ida Reid, his mother, were

named therein as beneficiaries. |

9. That Adolphus Reid and Ida Reid as beneficiaries were

entitled to receive, after the death of the insured, monthly

installments from said insurance in the sum of $28.75 each

for a total of two hundred and forty months, if they should

live to receive them; but Adolphus Reid died intestate in

Mecklenburg County on the 22nd day of November, 1926,

[fol. 7] and that he did not in his lifetime receive any of the

installments to which he became entitled upon the death of

the insured; and that Ida Reid died in Mecklenburg County

on the 22nd of February, 1932, leaving a will, to which a

caveat has been filed, and that she did not receive any of the

installments to which she became entitled upon the death of

the insured.

3. That the executrix named in the will of Ida Reid,

Lizzie May McCullough, has received from the Bureau of

War Risk Insurance the aggregate of all the monthly in-

stallments to which Ida Reid was entitled under said policy

as beneficiary in the sum of $3938.75; and that, as adminis-

trator of the estate of Adolphus Reid, Elijah Reid has re-

ceived from the Bureau of War Risk Insurance the aggre-

gate of the monthly installments to which the said Adolphus

Reid was entitled under said policy as beneficiary in the sum

Moses Reid, the insured soldier, a:d has been paid the sum

| “by the Bureau of War Risk Insurance as the

aie y payments to which the insured had.

J entitled to have received in his life, but which

been paid ; and th: said administrator received from

su of War Risk Insurance the further sum of

as the commute value of the unpaid monthly

“5, That no assets are held in either of the three estates

‘and that the total proceeds of said policy is at present Bel

7

in the following sums: Executrix of Ida Reid holds

$3,938.75; Administrator of Adolphus Reid holds $2,127.50;

and the administrator of the estate of the insured Moses

Reid holds a total of $6,630.50, of which $862.50 represents

accrued monthly payments due Moses Reid prior to his

death, and $5,768.00 represents the commuted value of the

‘unpaid installments under said policy.

[fol.8] Wherefore, upon the statement of facts as above

set out as found by the Court, the Court renders the fol-

lowing judgment:

1. That the facts of this case brings it within the applica-

tion of the Uniform Declaratory Judgment Act as enacted

by the General Assembly of North Carolina, Public Laws,

1931, Chapter 102.

2. That at the date of the death of Moses Reid his dis-

tributees were Adolphus Reid, his father, and Ida Reid, his

mother, and as such distributees they became entitled upon

his death to his personal estate.

3. That the money now in the hands of W. M. Smith, Ad-

ministrator of the estate of Moses Reid, consisting entirely

of insurance money from War Risk Insurance, is not sub-

ject to claims of creditors of the insured.

4. That as to the $862.50, which was due the insured prior

to his death; it belongs to the estate of the father and the

estate of the mother equally.

5. That as to the $5,768.00 received by him as the com-

muted value of the unpaid portion of the policy after the

death of the beneficiaries, it should be paid to the estate of

the father and the estate of the mother respectively in such

sums as are required to bring the said estates to an equal

sum after the sums paid into each by the Bureau of War

Risk Insurance, and the half of the $862.50 have been added

together; the intention of this finding being to make the

estate of the father and the estate of the mother exactly

equal finally. This ruling being based upon the decisions of

the Supreme Court of North Carolina, as laid down in

Pruden’s Case, 199 N. C., 256, and in Holl’s Case, 199 N. C:,

6. The Court in its discretion declines to rule on the

bier raised in the petition as to the right of Ida Reid to

devise any part of the funds held by the petitioner.

a

ib ko he

Renee ee

Wherefore, it is ordered, adjudged and decreed that the

said W. M. Smith, Administrator of Moses Reid, shall dis-

[fol: 9] burse the funds in his hands belonging to the said

estate and arising from a policy of War Risk Insurance

on the life of the said Moses Reid, in accord with the above

ruling, after payment of all costs of administration.

This the 26th day of November, 1932.

G. V. Cowper, Judge Presiding, etc.

In Superior Court oF MECKLENBURG CouNntTY

AppeaL ENTRIES

' The Executrix of the Estate of Ida Reid, excepts to the

judgment entered. in the above entitled matter by His

Honor, G. V. Cowper, on this the 26th day of November,

1932, and appeals therefrom to the Supreme Court of North

Carolina. Notice of appeal given in open Court. Appel-

lant allowed sixty days within which to prepare and serve

statement of case on appeal, and appellee allowed sixty

days thereafter in which to serve exceptions or counter-

case. Appeal bond in the sum of $79.00 adjudged sufficient.

This 26th day of November, 1932.

G. V. Cowper, Judge Presiding.

In Superion Court or MrcKLENBURG County

Exception anp AssiGNMENT oF Error

The Executrix of the Estate of Ida Reid, Deceased, ex-

cepts to so much of the foregoing judgment as holds: ‘‘That

as to the $5,768.00. received by him (the administrator of

the estate of Moses Reid) as the commuted value of the un-

paid portion of the policy after the death of the benefici-

i estate of the father and

estate of the mother respectively in such sums as are

said estates to. an equal sum after

and assigns such holding and finding as error, for that, it

does not conform to the provisions of the War Risk Insur-

ance Act, 38 U. S. C. A., See. 514, and is in conflict with

the provisions of the statute law of North Carolina relating

(fol. 10] to the distribution of personal property of an in-

testate, C. S. 137, Subsection 6. |

The foregoing is tendered as the statement of case on

appeal to the Supreme Court of the Executrix of the Estate

of Ida Reid, Deceased.

This January 24th, 1933.

J. H. McLain, Attorney for the Executrix of the Es-

tate of Ida Reid, Deceased.

Service of the foregoing statement of case on appeal is

hereby accepted and receipt of a copy thereof hereby ac-

knowledged.

This January 24th, 1933.

Wade H. Williams, Attorney for the Administrator

of the Estate of Adolphus Reid, Deceased.

In Superior Court or MECKLENBURG CouUNTY

AGREEMENT as To CasE ON APPEAL

It is hereby agreed that the foregoing shall constitute the

case on appeal to the Supreme Court of North Carolina in

the matter of the estate of Moses Reid, deceased; and it is

further agreed that the petition, judgment and appeal en-

tries shall constitute the transcript of the record’on appeal,

“This January 24, 1933.

Wade H. Williams, Attorney for the Administrator

of the Estate of Adolphus Reid, Deceased, J. H.

McLain, Attorney for the Executrix of the Estate

of Ida Reid, Deceased. W, M. Smith, Administra-

tor of the Estate of Moses Reid, Deceased.

(Transcript certified by Clerk Superior Court.)

* Bavard Murray, Clerk of the § reme Court. of

: urray, Clerk o upreme Court.

North Carolina, (Seal of reme Court. of

the State of North Caroling.) mr bis. nil

Ceeeeeeeeeeeeeeeee reer e rere

10

[fol. 11] In, Supreme Court oF North Caroiina, SPRING

Term,’ 1934

No. 399

In the Case In re Estate or Moses Rep

&

Appeal docketed 11 April, 1933.

Case Argued 8 November, 1933.

Opinion filed 28 February, 1934.

Judgment Affirmed. ;

Opinion certified to Superior Court on 2 April, 1934. ne

A True Copy.

Edward Murray, Supreme Court Clerk.

—

{fol.12] In Supreme Court OF NortH CaRoLina, SPRING

Term, 1934

In the Matter of the Estate or Moses Rem, Deceased

Civil action, Before Cowper, Special J., November Special

Term, Mecklenburg Superior Court

Moses Reid, a soldier in the United States Army during

the world war, died intestate on Atgust 23, 1920, without

leaving a wife or child or issue of such. ‘He left him sur-

viving his father, Adolphus Reid, and his mother, Ida Reid.

Adolphus Reid, the father, died on November 22, 1926, and

his mother, Ida, died February 22, 1932. The deceased

soldier had a policy of War Risk Insurance in the sum of

$10,000.00. In said policy his father and mother were both

named beneficiaries. W. M. Smith is the administrator of

the estate of the soldier, Moses Reid. Elijah Reid is the

administrator of the Estate of Adolphus Reid, the father,

and Lizzie May McCulloch is the executrix named in the

will of the mother, Ida Reid. The father and mother after

death of the soldier were entitled to receive a monthly

installment of $28.75 each for a total of 740 months. How-

ever, neither of said beneficiaries received any installment

prior to de: The Bureau of War Risk Insurance paid

to the administrator of the father the aggregate monthly

installments which he would have received up to the time of

his death, amounting to $2,127.50. The installments the

tl |

11

mother would have received amounting to $3,938.75, were

paid to her executrix. The sum of $6,630.50 was paid to

W. M. Smith, the administrator of the estate of the soldier.

The children of the mother, Ida Reid, have filed a caveat to

her will. The validity of the will has not yet been deter-

mined.

This proceeding was brought to determine the rights of

the parties in and to the estate of the soldier. It was ad- :

mitted that the only property of said estate consisted of 7

War Risk Insurance and disability insurance paid by the

government.

(fol. 13] The pertinent portion of the judgment rendered

was as follows: ‘‘That at the date of the death of Moses

Reid his distributees were Adolphus Reid, his father, and

Ida Reid, his mother, and as such distributees they became

entitled upon his death to his personal estate. That the

money now in the hands of W. M. Smith, administrator of

the estate of Moses Reid, consisting entirely of insurance

money from War Risk Insurance, is not subject to claims

of creditors of the insured. That as to the $862.50, which

was due the insured prior to his death, it belongs to the

estate of the father and the estate of the mother equally.

That as to the $5,768.00 received by him as the commuted

value of the unpaid portion of the policy after the death of

the beneficiaries, it should be paid to the estate of the father

and the estate of the mother respectively in such sums as

are required to bring the said estates to an equal sum after

the sums paid into each by the Bureau of War Risk Insur-

ance, and the half of the $862.50 have been added to make

the estate of the father and the estate of the mother exactly

equal finally.°* The court in its discretion declines to

rule on the question raised in the petition as to the right of

Ida Reid to devise any part of the funds held by the peti-

tioner.’’

From the foregoing judgment the executrix of the estate

of Ida Reid, deceased, appealed.

J. H. McLain, Attorney for Executrix of the Estate

of Ida Reid, Dec’d. Wade H. Williams, Attorney

for the Administrator of the Estate of Moses Reid,

deceased.

12

Orrnionw

BrooebdEN, J:

When Moses Reid died his distributees were his father,

Adolphus Reid, and his mother, Ida Reid. Both were living.

The statute cast upon each one-half of the personal prop-

erty of deceased. Thereupon the right of property to such

one-half immediately vested. C. 8. 137, sub-section 6.

Neither received as beneficiary in the War Risk In-

surance policy any installment from the government during

his or her life. Therefore, the whole fund in contemplation

of law is now assets of the estate of the dead soldier, to be

distributed immediately to the estates of his father and

mother. The fact that one beneficiary lived longer than the

[fol. 14] other and hence entitled to receive more money

‘n installments from the government, has nothing to do

with the right of property as distributee. The intestate

law of this state pegged that right at the death of the sol-

dier. In re Estate of Pruden, 199 N. C., 256, 154 S. E., 7;

Grady v. Holl, 199 N. C., 155 S. E., 565; Mixon v. Mixon,

203 N. C., 566, 166 S. E., 516; In re Sanders, 205 N. C., 241;

Singleton v. Cheek, 284 U. S., 493, 76 Law. Ed. 419. See also

Stacy v. Culbertson, et als, 160 8. E., 50.

Affirmed.

A true copy.

Edward Murray, Clerk of the Supreme Court of

North Carolina. (Seal of the Supreme Court of

the State of North Carolina.) :

yw

(5051-C)

“7

13 4

-

{fol.13] Supreme Court or one Unrrep Srares

Onpzr ALLowrne Czrtiorari—Filed Octo!«: 8, 1934 :

The petition herein for a writ of certiorari io the Su-

preme Court-of the State of North Carolina is granted.

And it is further ordered that the duly certified copy of

the transcript of the proceedings below which accompanied

the petition shall be treated as though filed in response to

such writ.

(5550-C)

|S Bie