First Security Trust Co. v. Lentz, 196 N.C. 407 (1928)

Dec. 19, 1928 · Supreme Court of North Carolina
196 N.C. 407
FIRST SECURITY TRUST COMPANY, Executor of the Will of J. A. LENTZ, Deceased, v. MRS. BLANCHE F. LENTZ, MRS. WINNIE LEE KEEVER and Her Husband, CLARENCE KEEVER, E. W. LENTZ and Wife, BLOSSOM LENTZ, FRANK A. LENTZ and Wife, ANNIE LENTZ, FRANCES E. LENTZ, JOHN A. LENTZ, Jr., and BLANCHE LENTZ, the Last Two Being Minors and Represented by Their Guardian, MRS. BLANCHE F. LENTZ

FIRST SECURITY TRUST COMPANY, Executor of the Will of J. A. LENTZ, Deceased, v. MRS. BLANCHE F. LENTZ, MRS. WINNIE LEE KEEVER and Her Husband, CLARENCE KEEVER, E. W. LENTZ and Wife, BLOSSOM LENTZ, FRANK A. LENTZ and Wife, ANNIE LENTZ, FRANCES E. LENTZ, JOHN A. LENTZ, Jr., and BLANCHE LENTZ, the Last Two Being Minors and Represented by Their Guardian, MRS. BLANCHE F. LENTZ.

(Filed 19 December, 1928.)

For Digest see Trust Co. v. Lentz, ante, 898.

Appeal by plaintiff from Finley, J., at May Term, 1928, of Catawba.

Special proceedings instituted by First Security Trust Company executor under the will of John A. Lentz, deceased, against the devisees, legatees and afterborn child of the testator, to sell certain real and personal property to make assets for the payment of the debts of the decedent.

From a judgment declining to order a sale of some of the personal property, and directing the executor how to proceed, the plaintiff appeals, assigning errors as to said order and directions.

H. G. Stephens and E. B. Cline for plaintiff.

Self & Bagby and Bailey Patrick for defendants, Mrs. Blcmche F. Lentz, John A. Lentz, Jr., and Blanche Lentz.

W. B. Councill and Mark Squires for defendants, Winnie Lee Keener, E. W. Lentz, et al.

Stacy, 0. J.

This is a companion case to another case between the same parties, just decided, and is controlled by what was said in that ease.

The rule respecting the order of affecting assets, or the priority of their application under the provisions of the will as announced in the first case, seems not to have been followed in the court below, hence the present proceedings will be remanded for further action, not inconsistent with the opinion rendered in the other case.

The executor is entitled to proceed in the most expeditious and judicious manner for the settlement of the estate, observing, of course, the order of affecting assets, or the priority of their application, hut it is not required to await the adjustment of ratable contribution among those standing on a parity in this respect.

Error and remanded.