In re will of McLelland, 207 N.C. 375 (1934)

Nov. 21, 1934 · Supreme Court of North Carolina
207 N.C. 375

In re Will of W. D. McLELLAND.

(Filed 21 November, 1934.)

1. Executors and Administrators F e—

Family settlements of estates are commended by tbe law.

2. Appeal and Error K b—

In this case proceedings after tbe consent judgment of tbe parties for tbe distribution of tbe estate in question being unauthorized, or irregular, all proceedings after tbe entry of tbe consent judgment are stricken out and tbe case remanded for adjustment of tbe rights of tbe parties in accordance with law.

Appeal by “heirs at law of ~W. D. McLelland” from Harding, J., at June Special Term, 1934, of Ikedell.

Nondescript proceeding, started by a caveat to tbe will of W. D. McLelland, late of Iredell County, which resulted in a consent judgment, all tbe parties agreeing tbat tbe will should be declared valid and probated in solemn form; that three commissioners should be selected by tbe parties, or appointed by tbe clerk, to divide tbe real estate of tbe testator, etc.

*376Pursuant to tbis consent judgment, tbe clerk appointed three commissioners and specifically directed them bow to divide tbe lands, including tbe “joint lands belonging to tbe estate of W. D. and H. A. McLelland.” Tbis went beyond tbe terms of tbe consent judgment.

Upon tbe coming in of tbe report of tbe commissioners, “tbe beirs at law of W. D. McLelland” filed exceptions thereto, and Carrie Elliott McLelland, widow and residuary legatee, filed answer to said exceptions. In tbis state of tbe record tbe matter came on for bearing at tbe June Special Term, 1934, of Iredell Superior Court, “and tbe court also being asked to construe tbe will of tbe late H. A. McLelland, which is made a part of tbis record, after bearing evidence, affidavits presented, and argument of counsel,” a judgment was entered “on tbe whole record” and ordered spread on tbe special proceedings docket, from which tbe “beirs at law of W. D. McLelland” appeal, assigning errors.

John M. Bohinson, John G. Lewis, and Burén Jurney for appellants.

Jaclc Joyner and Burhe & Burke for appellee.

Stacy, C. J.

Neither tbe will of W. D. McLelland nor tbe caveat filed thereto is in tbe record. Hence, we are not advised as to what interest, if any, bis “beirs at law” have in tbe subject-matter of tbe proceeding. Tbe “case” apparently proceeded on tbe assumption that tbe rights of tbe parties were settled by tbe consent judgment, but tbe order of tbe clerk, provided for therein, went beyond tbe terms of tbe consent judgment, and thereafter tbe will of H. A. McLelland, brother of W. D. McLelland, was introduced into tbe record, together with other matters.

Family settlements are to be commended (Tise v. Sicks, 191 N. C., 609, 132 S. E., 560), and much is permitted to be done by consent of tbe parties, but it is a little unusual for an issue of devisavit vel non, raised by a caveat to one will, to end with tbe construction of another, and all without pleadings, or chart or compass, by which tbe court may be guided. It is not stipulated in tbe consent judgment that exceptions may be filed to tbe report of tbe commissioners, nor does it contain any description of tbe lands sought to be divided.

In tbe interest of a fair determination of tbe rights of tbe parties, it would seem that everything done subsequent to tbe entry of tbe consent judgment should be stricken out as unauthorized, and tbe parties allowed to proceed in some regular way to have their rights adjusted.

Error and remanded.