Jones v. Jones

• Decision Date: 21 May 1947
• Docket Number: 594.
• Citation: 42 S.E.2d 620,227 N.C. 424
• Parties: Jones et al. v. Jones et al.
• Court: North Carolina Supreme Court

42 S.E.2d 620

227 N.C. 424

Jones et al. v. Jones et al.

No. 594.

Supreme Court of North Carolina

May 21, 1947

Special proceeding for sale of four certain tracts of land for partition among petitioners as tenants in common and owners in fee thereof, to which respondents are made parties so that the court may determine and adjudicate their claim and interest therein if any--and in which all respondents, other than C.L. Jones and wife, and Fannie Jones Livingston and husband, by answer filed, deny title of petitioners, and specifically plead that the fourth tract is the property of the collateral heirs of Margaret Jones, the wife of John Wesley Jones, and that petitioners have no right, title or interest therein, and assert claim of interest in said lands based upon provisions of Item Four and Item Seven of the last will and testament of John Wesley Jones, deceased, a copy of which is attached to and made a part of their answer for purpose of incorporating same therein.

Counsel representing the petitioners and the answering respondents agreed upon facts to be submitted to the court, upon the hearing, as follows: "Two Hundred five acres of the lands, title to which is involved in this action, were devised to John Wesley Jones, by his father, Duncan Jones. The remaining part of the lands involved were acquired by John Wesley Jones from other sources, and constituted, with the 10 acres devised to Turner McKenzie, all of his estate except a small amount of personal property. Thereafter, John Wesley Jones died domiciled in Scotland County, leaving a last will and testament duly filed and probated in the office of the Clerk of the Superior Court of Scotland County, a copy of which is hereto attached, marked Exhibit A, and made a part of these agreed facts." Pertinent parts of the will are as follows:

"Item Two. I give to my wife should she survive me, fifty acres to be laid off so as to include my residence and to best advantage to same and rest of farm.

"Item Three. I desire that my wife's sister, Sallie Jones shall have a home and support along with my wife so long as Sallie shall remain single and desire to live on the said fifty acres of land devised to my wife.

"Item Four. The residue of my land I dispose of as follows: To John Earle McKenzie and Turner Kenneth McKenzie, sons of Turner McKenzie, (Sr.), I give ten acres of land to be laid off on the public road next to the McEachin land and extending back west to ditch so as to include ten acres for the use of said children. The rest of my land I give to my sons John North Jones, Angus D. Jones and Luther Thomas Jones to have the use of same for their care, the maintenance and support of themselves and their families should they or any of them marry hereafter, this use to last through natural life of my said sons provided that if any one or more of said sons shall pledge their right and interest in said lands by mortgage or other written obligation or submit to any judgment that would otherwise take title or encumber their title to said lands during each of his life, his estate shall thereby terminate and shall go over to the children of such son so forfeiting if he have lawful issue then living, and if he have no lawful issue, then it shall go over to the surviving brothers and their children to be held as they hold their portions herein devised for their support, subject to all the conditions set out in the first instance. The lands devised to may sons may be held in common or partitioned as they may prefer.

"Item Five. My personal property I give as follows: To my widow all my household and kitchen furniture and furnishings, provisions on hand and family supplies. To my widow one cow and her increase, of her selection; and if there be others cows, North shall have one milk cow.

"Item Six. My livestock otherwise to be kept to complete farming operations for the year, and thereafter they and my farming equipment may be sold or may be allowed to remain on the farm for the use of my family provided my sons prove industrious, attentive to business and of good habits, from year to year for ten years after my death, of which my executor shall be judge, or he may consult neighbors and accept their verdict and act on it, and if he so determines may sell said livestock and outfit at completion of any crop season, he to be the judge at all times as to when to sell.

"Item Seven. The rest and residue of my property I give to my wife one half, and the other half to my children in equal share."

Further agreed facts are these:

"The widow and children of John Wesley Jones, named in the will, died intestate in the following order:

(a) Angus D. Jones

(b) Margaret Jones

(c) John North Jones

(d) Luther Thomas Jones

"John Wesley Jones and Margaret Jones were first cousins.

"John North Jones, Angus D. Jones and Luther Thomas Jones, devisees under the will of John Wesley Jones, died intestate and without issue. None of the three named devisees married nor pledged their right and interest in the lands described in Paragraph IV of the will, by mortgage or other written obligation, nor submitted to any judgment that would otherwise take title or encumber their title during each his life nor attempted to make any conveyance of any interest in said lands.

"At the time of the execution of the will of John Wesley Jones, John North Jones and Luther Thomas Jones were incompetents.

"The collateral heirs at law of John North Jones, Angus D. Jones and Luther Thomas Jones are parties to this action either as plaintiffs or defendants.

"The collateral heirs at law of the testator, John Wesley Jones, claim title to the lands devised under Items II and IV of the will of John Wesley Jones.

"The collateral heirs of Margaret Jones claim title to the lands devised under Item II of said will and one-half interest in the lands devised under Item IV of said will, claiming said one-half interest under Item VII of the will."

The counsel thereupon stipulated "that when the court enters judgment in this cause that such judgement shall fix the interest of the parties upon the pleadings and this agreed statement of facts, etc."

When the cause came on for hearing, pursuant to agreement of counsel, the counsel submitted the agreed facts and stipulation, as above set forth, together with an admitted copy of the will of J. Wesley Jones, incorporating the provisions therein hereinabove quoted. The court thereupon concludes as follows:

"1. That J. Wesley Jones on 5 January, 1917, executed his last will and testament, which last will and testament was filed in the office of the Clerk of the Superior Court of Scotland County, probated and recorded as above set out, and the Court makes the agreed facts set forth in said stipulation a part of its findings of fact.

"2. The Court is of opinion, and so holds that the fifty (50) acres of land described in the will of John Wesley Jones (who is the same person as J. Wesley Jones), in Item 2 thereof, vested in fee simple in Margaret Jones, surviving widow of John Wesley Jones, and the same was thereafter laid off in accordance with said Item 2.

"3. That Margaret Jones, widow of John Wesley Jones, was not an heir of John Wesley Jones, and that in determining the collateral heirs who are entitled...