Appeal by plaintiff, Jonathan H. Woody.
At the outset attention is again directed to Rules 19 (3) and 21 of the Rules of Practice in Supreme Court— Appendix 1 of Volume 4A of the General Statutes; also 221 N.C. 544, and see early case Pruitt v. *606 Wood, 199 N.C. 788, 156 S.E. 126, and late case Hunt v. Davis, 248 N.C. 69, 102 S.E. 2d, 405, and many intervening cases. Many of the assignments of error in the main are deficient. However enough are preserved to present determinative questions.
Among the assignments of error presented on this appeal, appellant Jonathan H. Woody points to Woody’s exception number 21 to the refusal of the trial judge to allow motion for leave to amend his complaint to allege that plaintiff, Jonathan H. Woody, purchased the stock in controversy from Maude B. Pickelsimer individually and also as Executrix of the will of Joseph H. Pickelsimer, in order that the pleadings might conform to the evidence introduced by the plaintiffs, and the evidence introduced by all the parties. The motion to so amend was refused “for that the court is of opinion that such amendment was contrary to the testimony of Jonathan H. Woody, and that the testimony of said plaintiff showed that he purchased the stock from Maude B. Pickelsimer, individually and not as executrix, even though the stock certificates were thereafter endorsed by Maude B. Pickelsimer in her capacity as executrix.”
True the plaintiff said he was dealing with Mrs. Pickelsimer individually. But under the circumstances of this case, how he was negotiating with her is a conclusion of law. His evidence tends to How he was purchasing and paying approximately $27,000 for 62 shares of stock and not for a life estate therein of a person then about seventy years of age. To complete the full sale, it was necessary that Maude B. Pickelsimer execute the transfer in her capacity as Executrix of the will of Joseph H. Pickelsimer.
Hence in the ruling so made, this Court is constrained to hold there is error upon two grounds:
First: Considering the complaint: Both the statute,' G.S. 1-151, and the decisions of this Court require that the pleading be liberally construed, and that every reasonable intendment and presumption must be in favor of the pleader. A pleading must be fatally defective before it will be rejected as insufficient. Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E. 2d, 369; Dickensheets v. Taylor, 223 N.C. 570, 27 S.E. 2d 618, and cases cited.
Applying this principle in testing the sufficiency of the complaR" in present case, we are unable to say that in no view is a cause oí action stated as against Maude B. Pickelsimer as Executrix of the will of Joseph H. Pickelsimer in respect to the validity of the sale of the stock in question.
“The rule is, that where one has both an estate in and a power over property, and does an act which may be referred either to the execution of the power or to the exercise of his rights as owner, it *607will be presumed that the act is done by reason of his ownership; still if a conveyance is made which cannot have full effect except by referring it to an execution of the power, though some estate would pass by reason of the ownership, the conveyance will be referred to the power.” Matthews v. Griffin, 187 N.C. 599, 122 S.E. 465. See also Annotation in 91 A.L.R. at page 472; also Anno. 127 A.L.R. at page 248.
And in the Matthews case, supra, Hoke, J., speaking for the Court, had this to say on the subject: “It is now very generally accepted that the question is largely one of intent, and the instrument will be upheld as a valid execution of the power where, on its entire perusal, the intent to exercise the power can be plainly inferred, and that pertinent facts in pais may be resorted to in aid of such interpretations.”
In the light of this principle the allegations of the complaint are susceptible of the interpretation that in any event Maude B. Pickel-simer individually had an interest in the stock in question, and as executrix had the power to sell the interest of the estate therein.
The question then arises did Maude B. Pickelsimer, as Executrix of the will of Joseph H. Pickelsimer, have the power to sell, and assign the stock in question. In this respect, this Court held in Felton v. Felton, 213 N.C. 194, 195 S.E. 533, (1) that until the settlement and distribution of an estate, the administration is incomplete and the duties and obligations of the administratrix continue, and (2) that private sale of choses in action by executor or administrator, if made in good faith, is valid. Hence exception Number 24 to the granting of motion for judgment as of nonsuit as to Maude B. Pickelsimer appears to be well taken.
Secondly: Ordinarily motion to amend a pleading, under the circumstances here stated, is addressed to the sound discretion of the trial court, and his ruling thereon, made in the exercise of such discretion, is not reviewable on appeal; but it is error for the trial court to rule thereon as a matter of law without the exercise of discretion. See Tickle v. Hobgood, 212 N.C. 762, 194 S.E. 461, and cases cited.
However, since it is held that the complaint states a cause of action, as above set forth, this ruling becomes harmless.
The case should have been presented to a jury under appropriate instruction on pertinent issues as to validity of sale alleged in the complaint. For failure to do so, there must be a new trial on plaintiff’s appeal.
Now as to the Appeal by defendants, other than Maude B. Pickel-simer and B. J. Duckworth, from judgment as of nonsuit as to First National Bank & Trust Company in Asheville:
Regardless of what the reason was for the nonsuit, this Court is of opinion and holds that the further answer and counterclaim of *608these defendants fails to state a cause of action against the First National Bank & Trust Company in Asheville,— a defect upon the face of the record proper requiring dismissal in Supreme Court ex mero motu in the absence of an assignment of error. Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E. 2d 774.
In this connection, this Court in Wooten v. R.R., 128 N.C. 119, 38 S.E. 298, opinion by Montgomery, J., had this to say: “After mature' consideration of all the cases cited and the text in law books to which our attention has been called, our opinion is:
“First: That where a transfer of stock of a corporation is made on its books by an executor, the corporation is fixed with a knowledge that there is a will, and is chargeable with a knowledge of its contents to the same extent as if the officers had actually read it.
“Second: That, notwithstanding such knowledge of the contents of the will, the executor may, even with intent to convert to his own use the money, sell and transfer such stock to a purchaser under the corporation’s supervision, and that even though the stock be specifically bequeathed in the will, without liability on the part of the corporation unless it has at the time of the transfer reasonable ground to believe that the executor intends to misapply the money, or is in the' very transaction applying it to his own private use.”
Hence the appeal by defendants name, in this respect will be dismissed ex mero motu.
Lastly the matter of Appeal by First National Bank & Trust Company in Asheville from ruling of the court limiting the effect of the judgment as of nonsuit becomes moot and will be dismissed since the counterclaim against the Bank is dismissed.
For reasons stated above (1) On plaintiff’s appeal there will be a New Trial; (2) Appeal of. defendants, other than Maude B. Pickel-simer and R. J. Duckworth, is dismissed, and (3) Appeal by First National Bank & Trust Company is dismissed as now moot.
Plaintiff Woody’s Appeal — New Trial
Defendants’ Appeal — Dismissed
Bank’s Appeal — Moot