Strayhorn v. Aycock

WiNBORNE, J.

Careful consideration of tbe entire record on tbis appeal leads to tbe conclusion tbat tbe court below erred in refusing to allow motions for judgment as in case of nonsuit, made by defendant in apt time, to wbicb exceptions are preserved, and bere assigned as error.

While plaintiff states bis alleged cause of action against tbe defendant as an individual, tbe proof shows tbat in dealing with her with respect to tbe alleged agreement to collect on tbe insurance policy and pay over tbe proceeds to him, be, of necessity, dealt with her in her representative capacity as executrix of tbe last will and testament of tbe insured. Tbe policy, on its face and nothing else appearing, being payable to tbe estate of tbe insured, as soon as delivered vested in him and “like any other chose in action became an integral part of bis estate, subject to every rule of property known to tbe law,” Burton v. Farinholt, 86 N. C., 260, and, upon bis death, vested in tbe executrix, Price v. Askins, 212 N. C., 583, 194 S. E., 284; Linker v. Linker, 213 N. C., 351, 196 S. E., 329, in wbicb capacity only bad she tbe right to make tbe collection. When she collected, she received the money as executrix. Eights of creditors then intervened, and if plaintiff bad superior rights tbe way was then open to him to assert them in orderly and legal procedure. Having bad years of experience as clerk of Superior Court in supervising and handling of estates and trust funds, be must have known tbat defendant as an individual bad no legal right to collect tbe proceeds of tbe insurance policy and pay them over to plaintiff. If she bad agreed to do so, be would have been a party to tbe wrong, and could not take advantage of it.

If it be conceded tbat plaintiff bad an equitable interest in tbe policy, and tbat tbe conversation between bim and defendant transpired as stated by bim, and tbat tbe policy was delivered to defendant in consequence thereof, taking tbe evidence in tbe light most favorable to plaintiff and giving to bim tbe benefit of every reasonable intendment and reasonable inference to be drawn therefrom, tbe most tbat appears is tbat plaintiff appointed tbe defendant bis agent to collect tbe policy and pay over tbe money to bim. There is no evidence tbat she, in her individual capacity, collected or received any of tbe proceeds of tbe policy. Hence, proof of parol trust fails.

In any event, tbe conduct of tbe plaintiff portrayed in this record manifests such laches as would bar tbe action. Equity aids tbe vigilant, not those who have slept upon their rights.

Tbe judgment below is

Reversed.