#### CARRIE AVERY, Guardian of BUNA AVERY, JUDGE AVERY, WAIGHT-STILL AVERY, and CORINA AVERY, Minor Heirs at Law of W. W. AVERY, Deceased; and IRA VANCE, Administrator of W. W. AVERY, Deceased, v. E. C. GUY and J. WALTER WRIGHT, Trading as Partners in a Lumber Business Under Some Firm Name.

(Filed 27 January, 1932.)

1. Executors and Administrators E a — Where personalty is insufficient to pay debts of estate, realty may he sold under order of court.

Where the personal estate of an intestate is insufficient to pay the debts of the estate, including the costs of administration, the administrator may apply to the Superior Court for an order to sell real estate of the intestate to make assets, C. S., 74, the heirs of the deceased being necessary parties to the proceedings, C. S., 80, the heirs at law taking the land subject to the payment of the debts of the estate where the personalty is insufficient therefor.

2. Executors and Administrators C f — Rights of heirs held not prejudiced by nonsuit in guardian’s action to set aside award to administrator.

Where, after the death of the intestate a lumber company cuts some timber from lands beyond the boundaries described in their timber deed from the intestate, and a settlement is made therefor with the administrator of the estate in accordance with an award made by appraisers appointed by the court by agreement of counsel, and-it appears that the personalty of the intestate was not sufficient to pay all debts of the *153estate, and that the heirs at law of the intestate, through their guardian, are parties plaintiff and that they are entitled to payment from the administrator, after the debts of the estate are paid, of any surplus: *Held,*a judgment as of nonsuit in an action brought by the guardian of the heirs at law to set aside the award as not being binding on her will not be disturbed on appeal, no harm having resulted to the minor heirs at law, and the judgment not being prejudicial as to them.

3. Appeal and Error J e — A new trial will not be granted for error which is not prejudicial.

The Supreme Court will not grant a new trial where the alleged error is not prejudicial to the appellant and there is no prospect of ultimate benefit to him if the judgment should' be set aside.

Appeal by plaintiff Carrie Avery, guardian, aforesaid, from *Sink, J.,*at April Term, 1931, of Aveby.

Affirmed.

Tbe court below rendered tbe following judgment: “This cause coming on for bearing and being beard before bis Honor, and it appearing to tbe court upon tbe admitted facts that tbe plaintiffs are barred and estopped from further asserting tbeir claim in tbis cause, it is, therefore, considered, ordered and adjudged tbat tbe plaintiffs be and tbey are hereby nonsuited in tbis cause.” Plaintiff, Carrie Avery, guardian, excepted to tbe judgment as signed, assigned error and appealed to tbe Supreme Court.

*R. W. Wilson and Max 0. Wilson for plaintiffs.*

*J. W. Ragland for defendants.*

OlabksoN, J.

O. S., 74, in part, is as follows: “When tbe personal estate of a decedent is insufficient to pay all bis debts, including tbe charges of administration, tbe executor, administrator or collector may, at any time after tbe grant of letters, apply to tbe Superior Court of tbe county where tbe land or some part thereof is situated, by x>etition, to sell tbe real property for tbe payment of tbe debts of such decedent,” etc.

Upon tbe death of a person owing debts tbe land descends to tbe heirs at law subject to tbe payment of tbe same, after exhausting tbe personal property. Tbe heirs of tbe deceased are necessary parties to tbe proceeding. C. S., 80.

It was contended by plaintiff, Carrie Avery, guardian of tbe heirs at law of W. W. Avery, tbat defendants violated tbeir timber contract with W. W. Avery. Tbat defendants cut certain timber after W. W. Avery’s. death which was not included in tbe contract. Tbe defendants set up an award under a consent order made 21 June, 1930, in tbe Xmesent cause. Ira Yance, Sam G. Smith and Yance Palmer being appointed to investigate and make an award, which was done.

*154Tbe defendants contend that “settlement of this cause of action on the basis of $4.00 per M. feet, stump age, for the amount of timber estimated and reported as aforesaid, which said offer these defendants accepted, and paid the said Yance accordingly, and took a release from him duly executed and for full value and before the filing of the complaint herein, which said release these defendants now plead in bar of the plaintiffs’ action and right of recovery herein.”

The release set up, is as follows:

> “Whereas, the above entitled action was instituted in the Superior Court of Avery County for the purpose of collecting the balance due by E. C. Guy and Company to W. W. Avery estate on account of timber cut from the lands of the said W. W. Avery estate, under a contract or deed made before the death of the said W. W. Avery, some of said timber having been cut beyond the boundaries of said deed by mistake; and,

Whereas, by consent of the parties to said action, an estimate was made of the timber so cut beyond said boundaries, said estimate having been made by Sam Smith, Ira Yance and Yance Palmer, to be 50,000 feet; and,

Whereas, the said 50,000 feet so cut by mistake, added to the amount cut from the boundaries of said deed, makes a total of 388,963 feet at $4.00, making $1,555.85, on which has been paid $1,208.50, leaving a balance of $347.35. Which said amount is this day paid to Ira Yance, administrator of the estate of W. W. Avery, deceased, in full satisfaction and settlement of said matter, receipt of which, by the said Ira Yance, administrator, is hereby acknowledged. This 16 July, 1930. Ira Vance, administrator of the estate of W. W. Avery, deceased. Witness: Eugene Eller.”

The plaintiff in reply says: “That Ira Y anee, acting in the capacity of administrator, has settled all of the debts of the late W. W. Avery, and the estate except his commission and expenses and about $75.00 of debts incurred in the administration thereof. That the balance of any funds collected in this cause belongs to the wards of Carrie Avery, guardian. That she was not consulted in said attempted settlement; that she did not know such attempted settlements were contemplated, and that such attempted conditional transactions between the plaintiff, Ira Yance, and the defendant, E. C. Guy, does not constitute a bar to the prosecution of this action, as the plaintiff, Carrie Avery, is advised and believes.”"

If the defendants cut any timber under the contract made with W. W. Avery before his death, and had not accounted for it, then the action must be brought by the administrator of the estate, Ira Yance, and not by plaintiff Carrie Avery, guardian.

*155Tbe administrator of the estate of *W. W.*Ayer y, Ira Yanee, is a party plaintiff. It appears that there is a small amount of debts of the estate of W. W. Avery unpaid. The recovery in the action, if there are debts, would go to Ira Vance, administrator, to pay the debts of W. *W.*Avery, and any balance to Carrie Avery, guardian. As all the heirs at law of *W. W.*Avery, through their guardian, are parties plaintiff, and were when the settlement was made, we see no good reason to disturb the judgment of the court below. It appears in the record that those appointed in the action to estimate the timber *"having been appointed by the court by the agreement of counsel in this action.”*We do not think that the principle of law as set forth in *Garland v. Improvement Co.,*184 N. C., at p. 556, case cited by plaintiff guardian, applicable.

Conceding, but not deciding, that there was error in the judgment of the court below, yet on the entire record there is not such prejudicial or reversible error for which the judgment should be set aside.

In *Booth v. Hairston,*193 N. C., at p. 281, speaking to the subject, is the following: “Our system of appeals is founded on public policy and appellate courts will not encourage litigation by granting a new trial which could not benefit the litigant and the result changed upon a new trial, and the nongranting was not prejudicial to his rights. *Bateman v. Lumber Co.,*154 N. C., p. 253; *Rierson v. Iron Co.,*184 N. C., p. 363; *Davis v. Storage Co.,*186 N. C., 676. They will only interfere therefore, where there is a prospect of ultimate benefit.’ *Cauble v. Express Co.,*182 N. C., p. 451.” The judgment of the court below is

Affirmed.