Wake County NcArchives Court.....David Hinton, Jane C. Hinton V. 1873
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Connie Ardrey n/a November 7, 2011, 6:58 pm

Source: N C Reports
Written: 1873

Jane C. Hinton v. David Hinton 

Among other things a testator wills: "My executors are fully empowered to sell 
the balance of my estate or any part of it they may think best for the 
interest of my family, or retain the balance after paying my just debts, 
should they think it more to the interest and welfare of my family. I desire 
in either case, the property or proceeds shall be kept together until the 
oldest child shall arrive at a lawful age or shall marry, then the whole of my 
estate shall be divided between my wife and children. I desire further, that 
my wife shall have at all times sufficient funds for the maintenance and 
education of my children, of principal, if the interest should not be 
sufficient for that purpose": Held, That the discretion as to amount of the 
expenditure beyond the income, or of the extent of the encroachment to be made 
upon the principal, must be exercised by the executor. The general rule is, 
that where a discretion is given to a trustee, the Court has no jurisdiction 
to control its exercise, if the conduct of the trustee be bona fide. If 
however, the trustee acts mala fide, or refuses to exercise the discretion, 
the Court is obliged from necessity to interfere and take upon itself the 
discretionary power.

Civil Action, heard by Watts, J., at the Fall Term, 1872, of Wake Superior 
Court, upon the following case agreed:

1. Lawrence Hinton died on the 26th day of September, 1864, leaving a last 
will and testament which was duly admitted to probate in said county of Wake; 
and from which the plaintiff, at May Term, 1866, of Wake County Court, 
dissented. (So much of the will as is pertinent to the point decided, is fully 
stated in the opinion of the Court.)

2. That said Lawrence Hinton left him surviving a widow, the plaintiff, and 
the following children, to wit: Isabella who was born on the 10th day of July, 
1852; Anne M. who was born on the 6th day of November, 1853; Ransom who was 
born on the 26th day of April, 1858, and Mary L. who was born on the 18th day 
of October, 1863.

3. That said children have resided with their said mother since the death of 
the testator; she paying for their tuition and clothing and furnishing them 
with food at her own table, as per exhibits, &c.

4. That the estate of the said testator consists of $4,055.37, proceeds of the 
sales of land, now invested in bonds and notes, and about 570 acres of land, 
(294 acres of which have been assigned to plaintiff for dower,) of the 
estimated value of $6,000.

5. There has been paid to plaintiff, during the year 1868, $218.50, and during 
the year, 1871, $640.75, which are admitted to be all, or very nearly all, the 
rents and profits arising from said land and interest on said money, during 
the time embraced by the charges made in said exhibits. These sums have proved 
insufficient to pay the charges preferred by the plaintiff.

The plaintiff insists:

1. That the defendant, as executor is directed, in case the annual income 
derived from the said estate is not sufficient for the maintenance and 
education of the children, to furnish to the plaintiff for that purpose, 
sufficient funds from the principal thereof.

2. That although the sums expended or charged for tuition, clothing and board 
for the children respectively shall be unequal, yet the sum total of all such 
expenditures and charges, is a charge upon the estate, and not by the portions 
of the same to which each child would be entitled if equally divided, and this 
shall be done until the oldest of the said children should become of age or 
marry.

3. That the articles furnished by the plaintiff were proper, and such as were 
contemplated by the testator in making his said will.

It is submitted to the Court to decide:

1. Whether the plaintiff is entitled to be paid any part of her demand out of 
the principal of the fund raised from the sale of the lands.

2. If she is so entitled, whether such part of her demand shall be paid out of 
said funds, as a common fund, or the proper charges and expenditures of each 
child shall be paid out of his or her equal portion of said funds.

3. If the Court shall be of opinion, that the plaintiff is entitled to be paid 
any part of her demand in either way, then the demand shall be referred to a 
referee, to ascertain what portion or items of the same is a proper charge as 
well in the aggregate against all of the children, as separately against each 
child.

It is admitted, that since the institution of this suit, one of the children 
of the testator, Isabella, married on or about the 1st day of December, 1872.

His Honor, after argument, gave judgment for the plaintiff, from which the 
defendant appealed.

Moore & Gatling, for appellant
Mason & Devereux, contra

NC Supreme Court Justice Rodman, J. - Advancements, (technically so called) 
are made by a parent before his death, by which event his estate becomes 
equally divisible among his children. In the present case, advancements (not 
technically such) are made by his direction after his death, and in 
anticipation of the period which he has fixed on for an equal division. The 
analogy seems close enough to sustain the application of a common principle of 
equity of both cases.

If these views be correct, no division can be equal which does not include 
either all of the common property, or at least so much of it as will be of 
sufficient value to enable each child to receive, (including as receipts the 
advancements made to each) an aliquot share of the estate as it stood at the 
father's death, less, of course, the debts, &c., and the widow's dower.

Without giving any judgment upon the merits of the case, it is remanded, in 
order that a supplemental complaint may be filed setting forth the marriage of 
the eldest child, with such other matters as the parties may be advised, and 
demanding a division of the property, to which all the children may be 
parties. (see court case for judge’s full findings)

The costs of this Court will await the final judgment.

Per Curiam
Order accordingly

Additional Comments:
In the NC Supreme Court January Term 1873

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