Graves v. Trueblood

• Decision Date: 18 March 1887
• Court: North Carolina Supreme Court
• Parties: GRAVES and Wife v. TRUEBLOOD and others.

96 N.C. 495

1 S.E. 918

GRAVES and Wife

v.TRUEBLOOD and others.

Supreme Court of North Carolina.

March 18, 1887.

Appeal from superior court, Pasquotank county.

W. D. Pruden and John Gatting, for plaintiff.

Grandy & Aydlett, for defendant.

SMITH, C. J.

On December 26, 1859, Meddy Palmer, for the recited consideration of $1,650, conveyed by deed two lots of land in the town of Elizabeth City, which are described by boundaries therein, and also in the complaint, to John S. Burgess in fee, to be held upon the following trusts: “(1) For the sole and separate use and benefit of Barsheba Trueblood, now the wife of Cornelius Trueblood, for and during the term or continuance of the coverture, or the joint lives of said Barsheba and her husband. (2) If the said Barsheba shall survive her said husband, then, on demand being made of him, the said Burgess, his heirs or assigns, shall execute a proper deed of conveyance of all their title to the lots of land hereby conveyed, to the said Barsheba and her heirs, to be held by her in fee-simple. (3) If she shall die before her husband, and in writing, to be attested by two witnesses, appoint and direct in what manner and to whom the lots, one or both, shall be so conveyed to the trustee. (4) If she shall die, not having made such appointment and in the manner pointed out, upon a like demand, the trustee, his heirs or assigns, shall convey the lots ‘to the proper heirs at law of the said Barsheba Trueblood,’ with provisions as to rents and expenses not necessary to set out.” The equitable donee for life died without having exercised the conferred form of appointment; and, her husband continuing in possession, and claiming the right to do so, the feme plaintiff, a daughter of Mary Laboytaux, a sister of the deceased, and her husband, bring this action against the said Cornelius to recover possession. The defendant Abel Gallop, subsequently introduced into the action, is a brother of the said Barsheba, and these two are her only heirs at law. There was born of the bodies of said Cornelius and Barsheba, during their coverture, capable of inheriting, a child, who died during his mother's life.

The controversy between the two heirs at law, one in interest, while on opposing sides in the cause, and the contesting defendant Cornelius, was mainly as to the source from which the money used in paying for the lots was derived; the former insisting that it came from their mother's estate, the latter that it was the earnings of himself and wife, and that the instructions given to the draughtsman of the deed were to secure the remainder, after the life-estate, to him, which from inadvertence had not been done. Besides, as we understand, he construes the deed as vesting an estate in Barsheba, and thus he has an estate, as tenant by the curtesy, which justifies his occupancy. Upon issues formed for the jury they found that the purchase money did not come from Mary Laboytaux, but was accumulated by defendant and his wife before and during their marriage; that these expended $1,950 in the support of Mary Laboytaux's children; that such issue was born to the defendant and wife; and that the feme plaintiff, at the time of her marriage was 18 years of age.

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