Clarkson, J.
The defendant C. E. Taylor, executor of Emory D. Williamson, makes the following exception and assignment of error: “For that the trial court overruled appellant’s demurrer
ore tenus
to the complaint, for that the complaint did not state a cause of action in that it alleged only a transaction occurring after the death of E. D. Williamson and during the executor’s time.” We do not think, under the facts and circumstances of this case, the exception and assignment of error can be sustained.
In
Hailey v. Wheeler,
49 N. C., 159 (161), it is said: “No authority is found to support the position that an action can be maintained against a defendant, as executor, for money had and received by him, after the death of the testator. It would do violence to all principle. It is the duty of an executor to pay off the
debts of his testator
in a prescribed order. It is not possible to conceive how a debt of the testator can he created by matter occurring wholly in the executor’s time.”
This principle is well stated by
Varser, J.,
in
Snipes v. Monds,
190 N. C., 190.
Hood, Comr., v. Stewart, ante,
424. We do not think the principle above set forth applicable to the facts in the present case. We think the present debt sued for is “wholly in the executor’s time,” under the language of the will.
Item 6 of the will of Emory D. Williamson (dated 17 July, 1914, and duly probated) is as follows: “It is my will and desire that my executors, hereinafter named, shall, after paying the cost of administration, and the annual taxes on my estate, out of the real estate rentals and interest on any money due my estate, pay any balance or residue of said rentals and interest on money to my beloved wife in equal monthly installments, as far as practicable, and in the event that the residue of said rentals and interest on money does not amount to one hundred and twenty-five ($125.00) dollars per month, or $1,500.00 per year, then my will and desire is that my beloved wife be paid by my executors, hereinafter named, a sum sufficient to make one hundred and twenty-five ($125.00) dollars per month out of any money in their hands belonging to my estate;
And it is my will and desire further that in the event that my beloved wife should become an invalid or have cmy protracted illness, and should need special medical attention or nurses, my executors, hereinafter named, shall see that she have every care and attention, that my executors, hereinafter named, pay cmy necessary expense incurred in this way, if it be in excess of the monthly or annual amount above mentioned bequeathed to my beloved wife."
(Italics ours.)
The court below found the following facts: “The court finds that the said Marie M. Meares rendered faithful and efficient service during the period of time mentioned, and that such services were necessary for the care and protection of the said Mrs. Mary E. Williamson, who was both physically and mentally unable to care for herself. That the said Marie M. Meares was on duty for 18 hours each day, and said services were well worth the sum paid by the executor. On 2 August, 1932, plaintiff having been on duty for many months, was directed by her physician, Dr. H. M. Baker, to take a month’s vacation, and during this time Mrs. Mary E. Williamson was returned from her home at Cerro Gordo, N. G, to Baker Sanatorium, Lumberton, N. C. That on 2 September, 1932, plaintiff Marie M. Meares returned to her duty as nurse
for Mrs. Mary E. Williamson, going with her to her home in Cerro Gordo, N. C., and remaining with her on constant duty 18 hours each day, from 2 September, 1932, to 15 February, 1933. That during said period of time Mrs. Mary E. Williamson was physically and mentally unable to care for herself, being an invalid from a protracted illness, and the court finds as a fact, by reason of her condition, it was necessary for her to have special medical attention and nursing.”
We think there was sufficient competent evidence to sustain the above findings of fact. We also think there was sufficient competent evidence to base the findings of fact, as follows: “The defendant executor, C. E. Taylor, came to the hospital and advised Dr. H. M. Baker, the physician in charge, to do everything necessary for the comfort and care of Mrs. Mary E. Williamson, and to secure all necessary services for her, and that upon this authorization Dr. Baker continued the nurse, Marie M. Meares, in the services of Mrs. Williamson, and the court finds as a fact from the testimony of Dr. H. M. Baker that such services were necessary and proper for the care and protection of Mrs. Williamson,” etc.
There was corroborative evidence to like effect as to the employment of Miss Meares. O. E. Taylor, the executor, testified in part: “Q. And the last thing you said to Miss Meares was to take care of her? A. I think possibly when I said goodbye I asked her to take good care of Mrs. Williamson. I don’t think I saw Miss Meares any more until December. Q. And you left Mrs. Williamson under the care of Dr. Baker as a physician and Miss Meares as a nurse? A. I recognized Miss Meares only as Dr. Baker’s instrument. I didn’t know whether she was there all the time, or whether they would change from time to time. I left it entirely up to Dr. Baker to keep a nurse with her or not. . . . I would be delighted to pay Miss Meares if the court authorizes it, and relieves me, but my construction of the will— ... If I am wrong in the construction of the will, there is no other alternative but to pay; if the court says pay, it will be paid if we have to sell a house.”
We think the action was properly brought in the Superior Court. N. C. Code, 1935 (Michie), sec. 135.
S. v. McCanless,
193 N. C., 200.
The testator, Emory D. Williamson, and his wife had no children. No doubt, realizing that his wife was growing old and had no one to care for her, it seems he took unusual precaution, in clear language, to have his executor to charge his estate for her care if she broke down in health. He speaks of her as his beloved wife, and says, (1) should she become an invalid, (2) or have any protracted illness, (3) and should need special medical attention or
nurses.
Then he makes it mandatory on his executors that they “shall see that she have
every care
and
attention.”
His executors to “pay any necessary expense incurred in this way, if it be in
excess
of the monthly or the annual amount above mentioned bequeathed to
my beloved wife.”
What did the plaintiff do (undisputed) : “I worked eighteen hours out of the twenty-four. I massaged her limb, which was swollen, and administered medicine, prepared her trays, and was with her constantly. I was the only white lady there at the time. I had to look after her and bathe her. I slept in the next room with my door open. Her physical and mental condition during the particular period for which I received no pay was very bad. She could not walk around. She would get up sometimes and should not have. She could not walk unless I helped her, and we had to keep her on a special diet. Her kidney condition was bad, and she would contract cold very easily, and she could not sleep and her mental condition was very bad. ...
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Clarkson, J.
The defendant C. E. Taylor, executor of Emory D. Williamson, makes the following exception and assignment of error: “For that the trial court overruled appellant’s demurrer
ore tenus
to the complaint, for that the complaint did not state a cause of action in that it alleged only a transaction occurring after the death of E. D. Williamson and during the executor’s time.” We do not think, under the facts and circumstances of this case, the exception and assignment of error can be sustained.
In
Hailey v. Wheeler,
49 N. C., 159 (161), it is said: “No authority is found to support the position that an action can be maintained against a defendant, as executor, for money had and received by him, after the death of the testator. It would do violence to all principle. It is the duty of an executor to pay off the
debts of his testator
in a prescribed order. It is not possible to conceive how a debt of the testator can he created by matter occurring wholly in the executor’s time.”
This principle is well stated by
Varser, J.,
in
Snipes v. Monds,
190 N. C., 190.
Hood, Comr., v. Stewart, ante,
424. We do not think the principle above set forth applicable to the facts in the present case. We think the present debt sued for is “wholly in the executor’s time,” under the language of the will.
Item 6 of the will of Emory D. Williamson (dated 17 July, 1914, and duly probated) is as follows: “It is my will and desire that my executors, hereinafter named, shall, after paying the cost of administration, and the annual taxes on my estate, out of the real estate rentals and interest on any money due my estate, pay any balance or residue of said rentals and interest on money to my beloved wife in equal monthly installments, as far as practicable, and in the event that the residue of said rentals and interest on money does not amount to one hundred and twenty-five ($125.00) dollars per month, or $1,500.00 per year, then my will and desire is that my beloved wife be paid by my executors, hereinafter named, a sum sufficient to make one hundred and twenty-five ($125.00) dollars per month out of any money in their hands belonging to my estate;
And it is my will and desire further that in the event that my beloved wife should become an invalid or have cmy protracted illness, and should need special medical attention or nurses, my executors, hereinafter named, shall see that she have every care and attention, that my executors, hereinafter named, pay cmy necessary expense incurred in this way, if it be in excess of the monthly or annual amount above mentioned bequeathed to my beloved wife."
(Italics ours.)
The court below found the following facts: “The court finds that the said Marie M. Meares rendered faithful and efficient service during the period of time mentioned, and that such services were necessary for the care and protection of the said Mrs. Mary E. Williamson, who was both physically and mentally unable to care for herself. That the said Marie M. Meares was on duty for 18 hours each day, and said services were well worth the sum paid by the executor. On 2 August, 1932, plaintiff having been on duty for many months, was directed by her physician, Dr. H. M. Baker, to take a month’s vacation, and during this time Mrs. Mary E. Williamson was returned from her home at Cerro Gordo, N. G, to Baker Sanatorium, Lumberton, N. C. That on 2 September, 1932, plaintiff Marie M. Meares returned to her duty as nurse
for Mrs. Mary E. Williamson, going with her to her home in Cerro Gordo, N. C., and remaining with her on constant duty 18 hours each day, from 2 September, 1932, to 15 February, 1933. That during said period of time Mrs. Mary E. Williamson was physically and mentally unable to care for herself, being an invalid from a protracted illness, and the court finds as a fact, by reason of her condition, it was necessary for her to have special medical attention and nursing.”
We think there was sufficient competent evidence to sustain the above findings of fact. We also think there was sufficient competent evidence to base the findings of fact, as follows: “The defendant executor, C. E. Taylor, came to the hospital and advised Dr. H. M. Baker, the physician in charge, to do everything necessary for the comfort and care of Mrs. Mary E. Williamson, and to secure all necessary services for her, and that upon this authorization Dr. Baker continued the nurse, Marie M. Meares, in the services of Mrs. Williamson, and the court finds as a fact from the testimony of Dr. H. M. Baker that such services were necessary and proper for the care and protection of Mrs. Williamson,” etc.
There was corroborative evidence to like effect as to the employment of Miss Meares. O. E. Taylor, the executor, testified in part: “Q. And the last thing you said to Miss Meares was to take care of her? A. I think possibly when I said goodbye I asked her to take good care of Mrs. Williamson. I don’t think I saw Miss Meares any more until December. Q. And you left Mrs. Williamson under the care of Dr. Baker as a physician and Miss Meares as a nurse? A. I recognized Miss Meares only as Dr. Baker’s instrument. I didn’t know whether she was there all the time, or whether they would change from time to time. I left it entirely up to Dr. Baker to keep a nurse with her or not. . . . I would be delighted to pay Miss Meares if the court authorizes it, and relieves me, but my construction of the will— ... If I am wrong in the construction of the will, there is no other alternative but to pay; if the court says pay, it will be paid if we have to sell a house.”
We think the action was properly brought in the Superior Court. N. C. Code, 1935 (Michie), sec. 135.
S. v. McCanless,
193 N. C., 200.
The testator, Emory D. Williamson, and his wife had no children. No doubt, realizing that his wife was growing old and had no one to care for her, it seems he took unusual precaution, in clear language, to have his executor to charge his estate for her care if she broke down in health. He speaks of her as his beloved wife, and says, (1) should she become an invalid, (2) or have any protracted illness, (3) and should need special medical attention or
nurses.
Then he makes it mandatory on his executors that they “shall see that she have
every care
and
attention.”
His executors to “pay any necessary expense incurred in this way, if it be in
excess
of the monthly or the annual amount above mentioned bequeathed to
my beloved wife.”
What did the plaintiff do (undisputed) : “I worked eighteen hours out of the twenty-four. I massaged her limb, which was swollen, and administered medicine, prepared her trays, and was with her constantly. I was the only white lady there at the time. I had to look after her and bathe her. I slept in the next room with my door open. Her physical and mental condition during the particular period for which I received no pay was very bad. She could not walk around. She would get up sometimes and should not have. She could not walk unless I helped her, and we had to keep her on a special diet. Her kidney condition was bad, and she would contract cold very easily, and she could not sleep and her mental condition was very bad. ... In the middle of the night she would try to get out and she would stay awake all night. She would walk around if she could and sit there and talk all night. During that time I imagine I stayed up all night about a half-dozen times. I always stayed up until about one o’clock. I would go on duty the next day from seven to eight, whenever she woke up. I prepared her tray and took it in the room. I looked after sending out the laundry and buying groceries and things of that kind. During that time I took her to Lumberton once a month to the hospital for examination, when she was able to go. At this time Mrs. Williamson is in Westbrook’s Sanitarium. I think that is a hospital for mental diseases. She has been there since before last Christmas.”
Dr. H. M. Baker, in charge of Baker Sanatorium at Lumberton, N. C., corroborated plaintiff, and testified that Mrs. Williamson “has chronic nephitis — Bright’s disease.”
We think the legal question as to liability is set at rest in
Carter v. Young,
193 N. C., 678 (683), where it is said: “No higher obligation rests upon the courts of this State than that which requires them to effectuate the purpose and intent of a testator, clearly expressed in his last will and testament, with respect to the maintenance and support of a dependent child, who was during the lifetime of the testator the object of his affection and solicitude. The courts have ample power to discharge this obligation.” See
Woody v. Christian,
205 N. C., 610. How much more is this duty imposed, in a proper case, as the present one, in reference to an aged and invalid woman — “One whom the finger of God had touched.”
It is well settled in this jurisdiction that if there is any sufficient competent evidence to support the findings of fact by the court below they are binding on us. We think there was competent evidence to support
the findings of fact. We think the trial court made no error in the admission of testimony complained of. From a careful examination of the record, the numerous exceptions and assignments of error made by C. E. Taylor, executor, cannot be sustained. We find on the record no reversible or prejudicial error.
For the reasons given, the judgment is
Affirmed.