Gillespie v. Gillespie

• Decision Date: 22 January 1924
• Docket Number: 604.
• Citation: 120 S.E. 822,187 N.C. 40
• Parties: GILLESPIE ET AL. v. GILLESPIE ET AL.
• Court: North Carolina Supreme Court

120 S.E. 822

187 N.C. 40

GILLESPIE ET AL. v. GILLESPIE ET AL.

No. 604.

Supreme Court of North Carolina

January 22, 1924

Appeal from Superior Court, Macon County; Bryson, Judge.

Action by R. H. Gillespie and others against Sarah Gillespie and others. Judgment for plaintiffs, and defendants appeal. Partial new trial.

Where a deed is absolute in form a trust therein must be established by proof which is clear, strong, and convincing, a mere preponderance of evidence not being sufficient, but whether it meets this requirement is for the jury.

L. F Gillespie and Samantha Gillespie intermarried on December 21 1871; she died on October 14, 1897, and on March 6, 1898, he married Sarah Tallent. The plaintiffs are the children born of the first marriage, and the defendants are Sarah (the widow) and her children born of the second marriage.

On June 5, 1874, John Gillespie and his wife conveyed certain tracts of land to L. T. Gillespie, and on November 17, 1879, J. G Crawford, commissioner, appointed to sell lands belonging to the estate of Elisha Gillespie, deceased, conveyed other tracts to L. R. Gillespie. On ______ day of March, 1923, L T. Gillespie, executed a paper purporting to be a deed to Sarah Gillespie, his second wife and Theodore, their son, conveying tracts therein described.

In their complaint the plaintiffs alleged that L. T. Gillespie did not have sufficient mental capacity to execute this deed; that its execution was procured by fraud and undue influence; and that it was never delivered. They further alleged that the lands described in the deed from Crawford, commissioner, to L. T. Gillespie were a part of the estate of Elisha Gillespie, and that all the purchase money was paid by Samantha Gillespie, the first wife, out of her sole and separate estate, and that L. T. Gillespie held the title to these tracts as trustee and that the defendants have no other interest therein.

The defendants put in issue the material allegations and pleaded the 10-year, the 7-year, and the 3-years statute of limitations.

In answer to the first issue, the jury found that the deed to the defendants had never been delivered, did not answer the issues as to mental capacity and undue influence, and found also, in answer to the fourth issue that the purchase money for the land described in the deed from Crawford, commissioner, was paid out of the separate estate of Samantha, the first wife. Upon these findings the court held that the action was not barred by the statute of limitations. The defendants appealed.

Ray & Ray and A. W. Horn, all of Franklin, for appellants.

T. J. Johnston, of Franklin, and Frye & Randolph, of Bryson City, for appellees.

ADAMS J.

The defendants requested an instruction that the jury should answer the first issue in the affirmative if they believed the evidence of Carl Slagle and Fred Slagle. We think the instruction was properly refused. Whether a deed has been delivered in the legal sense is not dependent exclusively upon the question of its manual or...