Parker v. Moore, 263 N.C. 89 (1964)

Nov. 25, 1964 · Supreme Court of North Carolina

263 N.C. 89

BERLINE CARPENTER PARKER v. ALIENE C. MOORE, Administratrix of the Estate of W. BERNARD MOORE, Deceased.

(Filed 25 November, 1964.)

1. Infants § 6—

Before funds belonging to infants or incompetents may be taken from them, the law requires that they be represented by a guardian, a guardian ad litem, or a next friend, as the situation may require.

2. Same—

On an ew parte petition filed by the minor’s mother and father, the court approved the payment by the infant out of the proceeds of a life policy a sum as a credit on the funeral expenses of the insured. Helé: The infant not being represented by a guardian ad, litem, the court was without authority to authorize the payment, and the infant, upon attaining her majority, is entitled to recover the fund against the insured’s estate.

Appeal by plaintiff from Crissman, J., July 1964 Session, Richmond Superior Court.

The plaintiff instituted this civil action to recover from the Estate of W. Bernard Moore the sum of $500.00 with interest from May 28, 1958. The plaintiff alleged in substance the following: On January 22, 1958, the Southern Life Insurance Company paid to the Clerk of the Superior Court for the use and benefit of the plaintiff the sum of $500.00, the amount due her as one of the beneficiaries of a policy of insurance on the life of Ernest Burr. At that time the plaintiff was a minor, 15 years of age, living with her parents. W. Bernard Moore, trading as Moore Funeral Home, conducted the funeral services at the burial of Ernest Burr.

On March 10, 1958, the mother and father of the plaintiff filed an ex parte petition with the clerk requesting the $500.00 in his hands belonging to their daughter be paid to W. Bernard Moore as a credit on the funeral expenses incident to the burial of Ernest Burr. The plaintiff joined in the petition. The Resident Judge of the district approved the order and the payment was made on May 28, 1958. The plaintiff was not represented either by guardian, guardian ad litem, or next friend.

The plaintiff became 21 years of age on February 14, 1964. On March 9, following, she filed a claim with the Administratrix of W. Bernard Moore, demanding return of the $500.00 which the Clerk had paid to Mr. Moore. Upon the denial of the claim, she filed this action on May 16, 1964. The defendant demurred on the ground the complaint failed to allege facts sufficient to constitute a cause of action. 'From the judgment sustaining the demurrer, the plaintiff appealed.

Pittman, Pittman & Pittman by W. G. Pittman for plaintiff appellant.

Taylor & McLendon by Moran D. McLendon, Jr., and F. O’Neil Jones for defendant appellee..

PER Curta m.

Before funds belonging to infants and incompetents may be taken from them, the law requires that they be represented by guardian, guardian ad litem, or next friend, as the situation may require. Parents as such are not authorized to divert funds belonging to their children. The court cannot authorize such diversion until the infant or incompetent is represented in the manner provided by law. The procedure followed here does not conform to that requirement.

By receiving the $500.00, Mr. Moore became unjustly enriched at the plaintiff’s expense. His estate should make restitution. The plaintiff had the right to repudiate the payment of her money when she became of age. She acted promptly after her 21st birthday. The complaint states a good cause of action. The court committed error in sustaining the demurrer. The defendant will be permitted to answer.

Reversed.