Ford v. Security National Bank of Greensboro

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105 S.E.2d 421 (1958)

249 N.C. 141

Betty Marie Miller FORD v. SECURITY NATIONAL BANK OF GREENSBORO, North Carolina, Guardian for Charlie W. Miller, Incompetent, Albert W. Miller, Effie Miller Bare, Jennie Miller Smith, and Bessie Miller Smith.

No. 379.

Supreme Court of North Carolina.

November 5, 1958.

*423 Bowie, Bowie & Vannoy, West Jefferson, for petitioner-appellee.

W. B. Austin, Jefferson, for respondent-appellees.

Cooke & Cooke, Greensboro, for guardian for Charlie W. Miller, incompetent.

RODMAN, Justice.

The assignments of error do not challenge the impoverished condition of the children nor the adequacy of the incompetent's estate to make the payments as directed without endangering his prior right to support.

The guardian's position is that the evidence demonstrates that an advancement made to any child would be wasted unless properly secured by court order and for that reason the payment ordered is not for the better promotion or advancement in life of any child and is not therefore authorized.

While a parent is under a legal as well as a moral obligation to support his minor children, that obligation normally terminates when the child reaches his majority and ceases to be dependent. Wells v. Wells, 227 N.C. 614, 44 S.E.2d 31, 1 A.L. R.2d 905.

This parental obligation was recognized as applicable to both sane and insane parents in Brooks v. Brooks, 25 N.C. 389. Ruffin, C. J., there said: "It is true, as we think, that the wife and children of a lunatic are *424 entitled to maintenance out of the estate, according to their circumstances, after providing properly for the lunatic. The statute de prerogative regis, 17 Ed. II, ch. 10, which provides that lunatics `and their households' shall live and be maintained competently from the issues of their estates, has not indeed been re-enacted here; and for that reason our Courts may not be authorized to extend the allowance to collateral relations, or to advancements to married children, as is done in England. In re Cotton and in re Hinde, 2 Mer., 99."

Whether the statute of 17 Ed. II was in fact merely declaratory of the common law which the courts had a right to exercise without statutory authorization or whether the courts derived their authority from the statute was again adverted to in In re Latham, 39 N.C. 231. The decisions in these cases were perhaps the reason which caused the Legislature to write as a part of our statute law what is now the first sentence of G.S. § 35-20 and sections 22 to 27 of c. 35 of the General Statutes. They were enacted by the Legislature which adopted the Revised Code of 1854. Notwithstanding the statutes have been on our books for more than a century, we are now for the first time called upon to interpret the meaning of sees. 22 and 26. This absence of litigation speaks highly, we think, of the manner in which guardians and court officials have exercised the authority granted them.

As first enacted, only surplus income could be used; but any doubt cast by Brooks v. Brooks, supra, as to the right to use such surplus income to assist adult members of the incompetent's family was removed by sec. 10 of the original Act, now G.S. § 35-22. In granting this authority to the court, the Legislature declared that advancements should not be made to persons who would probably waste them and granted the court authority to secure the advancements so as to protect the family of the person advanced. G.S. § 35-26.

In 1924 the Legislature broadened the authority given the court so as to permit the use of either surplus income or surplus estate when the incompetent had neither wife nor children. This provision is now the last sentence of G.S. § 35-20. In 1925 similar provision was made for the use of surplus estate for the better promotion in life of adult children when there was no one to whom the incompetent owed a legal obligation of support. G.S. § 35-21.

No one can doubt that financial assistance would be of benefit to the children of the incompetent occupying the economic status in life depicted by the evidence and the findings of fact. If their father were mentally competent, would he not aid them? If so, the court has the authority to use his money for that purpose.

The court, having reached the conclusion that financial help should be given, was confronted with the problem of determining the time and the manner and the amount. What finer thing could be done for these children of this incompetent veteran of World War I than to assist them in acquiring a home? Our fundamental law recognizes the benefits accruing from home ownership. Within the limits provided, the homestead cannot be taken for debt. Constitution, Art. X, sec. 2. It can be conveyed only with the written assent of the wife. Art. X, sec. 8. It may be exempted from taxation to the extent of $1,000. Art. V, sec. 5.

The evidence demonstrates a need and a proper purpose. Will the moneys advanced be used wisely or will the recipients in fact waste the advancements from their father? Only time will tell. Neither clerks nor judges are infallible. All that is required is an honest and sincere effort to ascertain the facts. If future events should demonstrate that the court made an erroneous finding, that does not invalidate a fact found after a full hearing and sincere consideration of all of the evidence.

The statute imposed a duty on the clerk and judge to ascertain the facts. That duty has been performed. No suggestion is made that it was not sincerely performed. *425 Appellant challenges only the soundness of findings and the wisdom of the order.

The evidence shows none of the applicants have accumulated any property. There is evidence of sexual promiscuousness by some applicants, but the evidence also indicates at least a part of the many difficult problems confronting applicants in early life.

It cannot be said that the evidence leads to the sole conclusion that applicants are unworthy to presently receive a part of their father's estate, or if it is paid to them it will be wasted to their detriment, or that their families will thereby be deprived of proper support.

The facts have been ascertained. The evidence is sufficient to support the findings, and the findings are adequate to justify the judgment.


PARKER, J., not sitting.

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