Baird v. Winstead

• Decision Date: 09 November 1898
• Citation: 31 S.E. 390,123 N.C. 181
• Parties: BAIRD v. WINSTEAD et al.
• Court: North Carolina Supreme Court

31 S.E. 390

123 N.C. 181

BAIRD v. WINSTEAD et al.

Supreme Court of North Carolina

November 9, 1898

Appeal from superior court, Person county; Robinson, Judge.

Action by Lucy Baird against Charles Winstead and others. From a judgment for defendants, plaintiff appealed. Affirmed.

Upon the conclusion of the evidence in the lower court, his honor intimated that he would charge the jury, if they believed the evidence, to answer the issues in favor of defendant; and plaintiff submitted to a nonsuit, and appealed. The plaintiff offered the will of William Baird, deceased, who was the father of Thomas A. Baird, deceased; the latter having married Lucy A. Baird, the plaintiff, a year or two before the death of said William. Thomas A. Baird died on August 3 1897, at the soldiers' home in Raleigh. He left, him surviving, two children by his said wife, Lucy A. Baird, the plaintiff, who is still a widow. Only two sections of said will bear distinctly upon the point in dispute, these being items 5 and 7. It was admitted that the defendants are in possession of the lands described in the complaint; said lands being the same which William Baird owned, and devised by will to Thomas Baird in items 5 and 7. It was also admitted that title to said lands was out of the state, and that the defendants held said lands by deeds obtained immediately or mediately from N. N. Tuck, commissioner in bankruptcy, who undertook to sell the same to pay the debts of said Thomas A. Baird, and that Mrs. Lucy A. Baird was forcibly ejected from said lands in 1876 by said C. S Winstead, under said bankruptcy proceedings, and that said Lucy A. Baird has not at any time signed any paper or done any act to deprive her of whatever interest she has or had if any, in and to said lands.

A will devised the residuary estate, "to be equally divided" between six named sons, and provided "Should my son T. die without leaving issue, then I desire that his share as above shall be equally divided among his brothers; and, if any of his brothers be then dead, the children of the dead brothers shall take their dead father's share. If, however, T. should leave a widow, I desire her to have the use of the property during life or widowhood." Held, that T.'s estate was absolute, unless defeated by his dying without issue, in which event only the widow's life estate became vested; otherwise she could take only dower in such estate.

Winston & Fuller, for appe...