Whitehurst v. Hinton, 184 N.C. 11 (1922)

Sept. 13, 1922 · Supreme Court of North Carolina

184 N.C. 11

ADA V. WHITEHURST et al. v. R. L. HINTON.

(Filed 13 September, 1922.)

Discovery — Evidence—Examination of Parties — Statutes—Appeal and Error — Parties.

An affidavit in support of a motion in tbe cause, to allow tbe plaintiffs to examine tbe defendant adversely under tbe provisions of O. S., 900, showing that tbe defendant bad assumed to manage tbe estate of a deceased person of whom tbe plaintiffs were tbe heirs at law, under a paper-writing purporting to be a will, but which bad been set aside by tbe court upon caveat entered, and that this was the only available way in which certain information necessary in tbe action could be obtained, etc., is held, sufficient to sustain tbe order of examination allowed by tbe clerk and approved by tbe judge of tbe Superior Court, and defendant’s appeal is accordingly dismissed in tbe Supreme Court. Jones v. Guano Oo., 180 N. C., 319, cited and distinguished.

Appeal by defendant from Bond, J., at March Term, 1922, of PaSQTTOTANK.

Motion in a civil action, pending in the Superior Court of Pasquotank County, for an order to examine the defendant adversely, as provided by O. S., 900 et seq. Erom an order of tbe clerk allowing tbe motion, tbe defendant appealed to tbe judge in term, wbo, upon a bearing, approved tbe order and judgment of tbe clerk, and remanded tbe cause for further proceedings in accordance therewith. Defendant appealed.

Meehins <& McMullan and Ehringhaus & Small for plaintiffs.

W. I. Halstead and W. A. Worth for defendant.

Stacy, J.

Appellant admits that tbe present appeal must be dismissed as premature, under authority of Monroe v. Holder, 182 N. C., 79, unless, as alleged, tbe order for tbe examination was made upon an insufficient affidavit. In support of this position, defendant relies upon tbe recent case of Jones v. Guano Co., 180 N. C., 319, and authorities there cited. Hence, tbe single question presented for decision is tbe sufficiency of tbe affidavit filed by tbe plaintiffs and upon which tbe instant order was granted.

It appears from tbe petition, which was duly verified and used as an affidavit herein, that tbe plaintiffs are tbe grandchildren of John L. Hinton, deceased; and, as such, are entitled to be numbered among bis heirs at law; that in 1910 tbe defendant, acting under a paper-writing purporting to be tbe last will and testament of said decedent, took charge of bis entire estate, both real and personal, and exercised complete control, supervision, and management of tbe same, collecting and using all tbe rents and profits derived therefrom, and occupying tbe lands and premises to tbe exclusion of tbe plaintiffs and those under whom they claim; that tbe plaintiffs were minors at tbe time of tbe death of their grandfather, tbe said John L. Hinton, and were not then fully aware of their rights, or capable of understanding tbe real value of their interest in bis estate; that in 1918 tbe plaintiffs, after reaching their majority, filed a caveat to the alleged will of their ancestor, which was sustained upon tbe ground of undue influence — tbe defendant having participated therein — and tbe said will’ was thereupon adjudged to be invalid; that tbe plaintiffs have brought this action to impeach tbe accounts filed by tbe defendant, while acting in a fiduciary capacity as executor under tbe paper-writing above mentioned, and to require a full and accurate accounting of all tbe properties which have come into bis bands as such executor, and which rightfully belong to tbe plaintiffs. It is further alleged in tbe petition that tbe defendant has in bis possession certain books and papers, and also possesses exclusive knowledge of matters and things connected with said estate which tbe plaintiffs deem necessary and essential to an intelligent drawing of their complaint. They further aver that, in no other way, is said information accessible to or obtainable by' them, and that this application is made honestly, in good faitb, and not maliciously or for any ulterior motive or purpose, sucb as was condemned by tbis Court in Bailey v. Matthews, 156 N. C., 81.

It would seem tbat tbe foregoing’ allegations of the petition, taken in connection with the relation of the parties, ought to be sufficient to warrant the court in granting the instant order. We are of opinion that the provisions of the statute have been met, and that the present appeal is premature. Holt v. Warehouse Co., 116 N. C., 480.

Appeal dismissed.