Stimson v. Phifer, 213 N.C. 355 (1938)

April 13, 1938 · Supreme Court of North Carolina

213 N.C. 355

BEN A. STIMSON et al. v. A. J. PHIFER.

(Filed 13 April, 1938.)

Executors and Administrators § 13a—

A creditor of an heir, certainly in the absence of evidence of fraud and collusion, is not entitled to prevent the executor from selling lands of the estate to make assets to pay debts.

Appeal by defendant from Rousseau, J., at November Term, 1937, of Iebdell.

Proceeding ¿gainst land of decedent for assets.

Tbe executor and trustee of tbe estate of W. J. Stimson, deceased, brings this proceeding, by petition duly filed before tbe clerk of tbe Superior Court of Iredell County, for license to sell land of decedent in order to make assets to pay debts and costs of administration.

Tbe defendant is made a party because be is a judgment creditor of tbe petitioner, individually, who is one of the devisees under tbe will of tbe deceased.

From judgment ordering land to be sold tbe defendant appeals, assigning errors.

Scott & Collier and Land & Sowers for plaintiffs, appellees.

Lewis & Lewis for defendant, appellant.

Stacy, C. J.

Whether judgment creditor of heir or devisee is necessary or proper' party to proceeding against decedent’s land for assets is not before us for decision. See Linker v. Linker, ante, 351; Battle v. Duncan, 90 N. C., 546; Byrd v. Byrd, 117 N. C., 523, 23 S. E., 324. Conceding that, upon proper allegations, such judgment creditor is presently entitled to be heard, Wadford v. Davis, 192 N. C., 484, 135 S. E., 353, nevertheless it appears that here he has offered no evidence to support his allegations of fraud or collusion, and his exceptive assignments of error point only to matters available to a coheir or codevisee. Finger v. Finger, 64 N. C., 183.

The record as presented requires no disturbance of the judgment.

No error.