#### EMMA S. FISH v. JANE ALICE FISH HANSON and LUCY MOORE, Individually and as Executrices of the Will of GEORGE FISH, Deceased, and DOROTHY LIGON.

(Filed 5 May, 1943.)

1. Executors and Administrators § 24—

Family agreements looking to the advantageous settlement of estates or to the adjustment of family differences, disputes, or controversies, when approved by the court, are valid and binding. They are bottomed on a sound public policy which seeks to preserve estates and to promote and encourage family accord.

•2. Trial § 54: Appeal and Error § 37e—

Findings of fact by the court, when a jury trial has been waived by consent, will not be disturbed on appeal, if based upon competent evidence. G. S., 669.

.'3. Executors and Administrators § 24—

Where testator died in May, 1933, leaving specific legacies to his daughters and debts totaling substantially the value of the estate, with residuum to be held in trust and income paid to his widow for life, then to go to the daughters, and all parties agreed to delay the settlement of the estate, collect the income, sell assets as advisable, and use income and proceeds of sales to pay debts and specific legacies, the daughters agreeing not to demand their legacies before the estate was worked out satisfactorily, a family agreement results and the widow is not entitled to receive from the residuum the income used in part to settle the debts.

Appeal by plaintiff from *Hamilton, Special Judge,*at September Extra Term, 1942, of MeceleNbukg.

Affirmed.

Civil action by legatee of life interest in residuary estate to recover income from estate received by executrices.

*144George Fish, late of Mecklenburg County, died testate 12 May, 1933. Plaintiff, Ms widow, and defendants Jane Alice Fish Hanson and Lucy Moore, bis daughters, were named as executrices. He made certain specific bequests, including $10,000 each to Lucy Moore and Jane Alice Eisb Hanson. Tbe residue of bis estate, after tbe payment of debts and tbe costs of administration, be devised to plaintiff for life or until ber remarriage, with remainder to bis two daughters and Dorothy Ligón, bis stepdaughter.

When be died bis estate was valued at $45,000 and be owed approximately $20,000. So that upon an immediate settlement of tbe estate tbe debts, expenses of administration and individual legacies would consume tbe estate, leaving a residuary bequest only nominal in value.

Tbe interested parties held a meeting, discussed tbe situation, considered tbe inadvisability of a sale of tbe assets of tbe estate at tbe then .prevailing low prices due to tbe existing economic depression, and agreed that tbe executrices should delay settlement of tbe estate, collect tbe income, sell assets from time to time as might be advisable, and use tbe income and proceeds of sales to pay tbe debts and specific legacies. To accomplish tbe purpose of tbe agreement tbe daughters agreed not to demand payment of their legacies before tbe estate was worked out on a satisfactory basis. All agreed that income from tbe estate property might be used to pay debts and specific legacies. This was done in order to try to salvage tbe property and to create a residue of substantial value.

Tbe executrices administered tbe estate in accord with tbe agreement. They collected income up to 1 January, 1940, in tbe sum of $13,956.43-net. This sum, plus sales of assets, was sufficient to pay all debts and specific legacies and approximately $500 to plaintiff and still leave an estate, consisting principally of income-producing real estate, valued at approximately $19,000 (tax value). Since 1 January, 1940, net income of $4,456.05 has been received and paid to plaintiff.

Plaintiff instituted this suit to recover tbe income collected by the-executrices, alleging that ber contract constituted nothing more than an agreement to advance tbe income for tbe benefit of tbe estate and that she is entitled now to reimbursement for tbe funds so advanced.

When tbe cause came on for bearing in tbe court below the parties waived trial by jury and agreed that tbe court should bear tbe evidence, find tbe facts and enter judgment thereon. Tbe court, after bearing tbe evidence, found.tbe facts substantially as herein set forth and entered judgment dismissing tbe action. Plaintiff excepted and appealed.

*Whitlock & Dockery for plaintiff, appellant.*

*Frank W. Orr and Frank II. Kennedy for Mrs. Lucy Moore, executrixr appellee.*

*145Barnhill, J.

Family agreements looking to tbe advantageous settlement of estates or to tbe adjustment of family differences, disputes or controversies, wben approved by tbe court, are valid and binding. Tbey are bottomed on a sound public policy wbicb seeks to preserve estates and to promote and encourage family accord. *Spencer v. McCleneghan,*202 N. C., 662, *163 S.*E., 753; *In re Estate of Wright, 204*N. C., 465, 168 S. E., 664; *Reynolds v. Reynolds,*208 N. C., 578, 182 S. E., 341; *Bohannon v. Trotinan,*214 N. C., 706, 200 S. E., 852; Scbouler, Wills, Executors and Administrators (6d), sec. 3103.

Tbe plaintiff testified “wben Mr. Eisb died bis estate was involved, tbe value of tbe assets was down, and it was agreed between tbe parties interested that, since it was not to tbe best interest of tbe estate to immediately close tbe same, as time passed, and income of tbe estate and sums realized from tbe liquidation of assets permitted, to pay tbe debts of tbe estate, together witb specific bequests to Lucy Moore and Jane Alice Eisb Hanson, tbe sum of $10,000. That agreement was made.” Sbe further testified that it was her understanding that sbe would receive tbe income later upon wbicb understanding “I voluntarily gave up any claim to tbe income for tbe time being, so as to settle tbe debts and tbe payment of legacies.”

TJpon this and other testimony offered tbe court found that tbe agreement was made without any condition that tbe income was to be paid tbe plaintiff later. This and other findings of fact are supported by competent evidence and tbe facts found are sufficient to support tbe judgment entered. C. S., 569; *Matthews v. Fry,*143 N. C., 384, 55 S. E., 787; *Eley v. R. R.,*165 N. C., 78, 80 S. E., 1064; *Trust Co. v. Cooke,*204 N. C., 566, 169 S. E., 148; *Buchanan v. Clark,*164 N. C., 56, 80 S. E., 424; *Best v. Garris,*211 N. C., 305, 190 S. E., 221.

It is apparent that tbe agreement was to tbe advantage of all parties. Through tbe contract of tbe legatees and tbe indulgence of creditors tbe executrices gained time wbicb enabled them to await tbe passing of tbe prevailing economic depression and to so handle tbe estate as to convert it from one in wbicb there was nothing for *the*residuary legatees into one in wbicb tbe residuum is of real value, producing a substantial income for tbe life tenant. As tbe daughters and stepdaughter are tbe remaindermen tbey also benefit to a material extent.

Tbe plaintiff proceeds upon tbe theory that all tbe income from tbe property of tbe estate, while it was in tbe bands of tbe executrices, belonged to her. In this sbe misconceives her rights under tbe will. If sbe was entitled to any interest at all it was interest on *the*residuary estate. At tbe time of tbe death of testator there was no residuum. Tbe income came from property it was tbe duty of tbe executrices to apply to *146other purposes. Perhaps the same result would follow even though there was no agreement. In any event, the plaintiff has not surrendered nearly so much as she seems to think.

*Trust Co. v. Jones,*210 N. C., 339, 186 S. E., 335, 105 A. L. R., 1189, is factually distinguishable.

The judgment below is

Affirmed.