Fulwood Et At v. Fulwood

• Citation: 77 S.E. 763,161 N.C. 601
• Parties: FULWOOD et at. v. FULWOOD et al.
• Decision Date: 26 March 1913
• Court: United States State Supreme Court of North Carolina

77 S.E. 763

161 N.C. 601

FULWOOD et at.

v.FULWOOD et al.

Supreme Court of North Carolina.

March 26, 1913.

1. Wills (§ 490^*)—Construction—Evidence to Aid—"Latent Ambiguity."

Where the 200-acre tract on which were the house, outbuildings, etc., and the three adjoining tracts were acquired at different times, and by different descriptions, a description of land devised as "the homestead tract" presents a latent ambiguity, and permits extrinsic evidence to fit the description, including declarations of the testator at the time of making the will and at other times, and his manner of dealing with the lands as by listing for taxation as one tract.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1047-1057; Dec. Dig. § 490.*

For other definitions, see Words and Phrases, vol. 5, pp. 4011, 4012.]

2. Evidence (§ 358*)—Maps—Conclusions of Surveyor.

Where a surveyor did not follow the order under which he was acting in preparing a map and marked thereon his conclusions, it was properly excluded.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1500-1508; Dec. Dig. § 358.*]

3. Appeal and Error (§ 1032*)—Prejudicial Error—Burden of Showing.

On a showing that a witness was asked, "Is there a branch separating the 200-acretract which you surveyed, and tract No. 1 which you surveyed?" "What separates tract No. 3 from the 200-acre tract?" "What, if anything, in the nature of a natural boundary divides these two tracts from each other?" without any statement as to what the testimony of the witness would be, or as to its materiality, the court cannot say that their exclusion was prejudicial error.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4047-4051; Dec. Dig. § 1032.^2-*

Appeal from Superior Court, Brunswick County; Stephen C. Bragaw, Judge.

Action by Phoeby Fulwood and others against James B. Fulwood and others. Judgment for defendants, and plaintiffs appeal. No error.

This is a proceeding for the partition of five tracts of land between the heirs of Benjamin Fulwood.

It was admitted at the trial that the said Fulwood acquired a 200-acre tract of land in 1875, which is not embraced in this proceeding; that he acquired the first and second tracts described in the petition in 1881, and the third tract in said petition in 1882, and the fourth and fifth tracts at some other time. The first, second, and third of said tracts adjoin the 200-acre tract, on which were the home, outhouses, etc. The said Benjamin Fulwood left a will in which he devised "the homestead tract of land" to the defendant, James B. Fulwood, subject to the life estate of the widow of Benjamin Fulwood. The petitioners contended that "the homestead tract" included the 200-acre tract, and no more, and the defendant contended that it included the 200-acre tract, and the first, second, and third tracts described in the petition. It was admitted that the plaintiffs and defendant were tenants in common of the fourth and fifth tracts. There was a verdict in favor of the defendant, and the petitioners appealed from the judgment rendered thereon.

C. Ed. Taylor, of Southport, for appellants.

Cranmer & Davis, of Southport, and Robert Ruark, of Wilmington, for appellees.

ALLEN, J. [1] The description of the land devised to the defendant as "the homestead tract, " presented the case of a latent ambiguity, as it was uncertain what land was intended to be included under that designation, after it appeared that the 200-acre tract and the first, second, and third tracts described in the petition were adjoining tracts, and that the lands were acquired under different descriptions and at different times. Sherrod v. Battle, 154 N. C. 353, 70 S. E. 834. It was then permissible to introduce extrinsic evidence to fit the description, and for that purpose the declarations of the testator at...