Kinsey v. Rhem

• Decision Date: 31 December 1841
• Citation: 24 N.C. 192,2 Ired. 192
• Court: North Carolina Supreme Court
• Parties: JOSEPH KINSEY AND OTHERS v. WILLIAM B. RHEM, EXECUTOR, .

2 Ired. 192

24 N.C. 192

JOSEPH KINSEY AND OTHERS

v.WILLIAM B. RHEM, EXECUTOR, .

Supreme Court of North Carolina.

December Term, 1841.

Parol evidence cannot be admitted to add to, substract from or modify a testamentary disposition, but it is properly admissible to identify the things therein described.

A. by will devised as follows: “I hereunto confirm the property I have heretofore given to my daughter Susan and one dollar to her, her heirs and assigns forever.” Uunder this devise a negro girl named Fan was claimed. It was proved that Fan's mother had been called in the family Susan's negro--that when Susan intermarried, this mother had been sent home with her and remained with her some time, and was afterwards taken back by the testator and continued with him till his death, claimed by him as his own--that the testator had quarrelled with Susan's husband--and besides the mother of Fan some articles of household furniture had been sent home with Susan, which had never been reclaimed. It also appeared that in similar devises to his other children, (four in number) he not only gave them in general terms the property he had before given them, but added, “including the negroes,” (naming them. ) Held, that the testator did not intend by this devise to convey any negro to Susan.

This was an appeal from the Judgment of the Superior Court of Law of Jones County, at Fall Term, 1841, his Honor Judge SETTLE presiding. The petition was brought against the defendant as executor of William Rhem, dec'd, for the recovery of a negro girl named Fan, and also for one dollar alleged to have been devised to the petitioner Susan, by the will of the said William. Much proof was taken in the cause, and upon the final hearing, the presiding Judge decreed the petition to be dismissed at the costs of the petitioners. The pleadings and the facts established by the proofs are fully set forth in the opinion delivered in this Court.J. W. Bryan, for the plaintiffs , commented at large on the testimony, to show that this negro and her mother had been given (by parol) to the plaintiff, Susan, in the testator's lifetime, so that in the description in the will, “the property he had heretofore given her” he meant to include this negro. He contended that the Judge erred in dismissing the petition, for the defendant had not even paid the admitted legacy of one dollar; and his honor erred in founding his opinion upon the ground that the plaintiffs were barred of recovery of the negro by the terms of the Act of 1806, (Rev. Stat. c. 37, s. 17.) The verbal gift in the lifetime of the testator, connected with the clause of the will in question, satisfies the Act of 1806. Parol evidence or extrinsic evidence, though not admitted to controvert a will, yet is admissible to show with reference to what it was made, or to explain a latent ambiguity. Bengough v Walker, 15 Ves. 514. And in this case parol evidence is admissible to show what property the testator had heretofore given to his daughter Susan, and consequently what property he meant he had confirmed to her in his will. This doctrine is supported by the Supreme Court in White v White, 1 Dev. & Bat. Rep. 268; and in Morton v Edwards, 4 Dev. 507. The gift is not void under the Act of 1806, inasmuch as it is confirmed by the will. See the case of Bullock v Bullock, 2 Dev. Eq. 314.

J. H. Bryan, for the defendant .

GASTON, J.

On the first of May, 1830, William Rhem, late of the County of Jones, duly executed his last will and testament, and therein, amongst other things, bequeathed as follows: “I hereunto confirm the property I have heretofore given to my daughter Susan Kinsey, and one dollar to her, her heirs and assigns for ever.” The testator, after other specific bequests, gave all his negroes and all the residue of his property to his sons Melchor Rhem and William B. Rhem, to be equally divided between them, their heirs and assigns, for ever; and constituted the latter and Hardy Perry his executors. After the testator's death, at the December Term, 1833, of Jones County Court, William B. Rhem, the defendant, alone proved the will, and took upon himself the office of executor. At the September Term, 1838, of Jones Superior Court, Joseph Kinsey and Susan his wife filed their petition against the said defendant, in which they set forth, that long previous to the intermarriage of the plaintiffs the deceased, William Rhem, gave unto the petitioner, Susan, his daughter, a negro child named Alice, and upon their marriage repeated the said gift, and sent the said Alice with her to her husband's house, where she afterwards remained until her death, being constantly recognised as the property of the petitioners. The petitioners further stated, that while Alice was thus in their possession, she gave birth to a child named Fan, and shortly afterwards died; that a short time before the death of the said William, the said negro girl, Fan, was permitted by the petitioners to go to the house of said William for a temporary purpose, and was there at his death, but was recognised by him as the property of the petitioners; that the said William never did give unto the petitioner, Susan, any other property than the negro Alice; that he made no deed of conveyance, but that he made similar parol gifts to his other children; and by his will confirmed this gift to the petitioner, Susan, and the other parol gifts to his other children. The petitioners further charged, that the defendant had taken possession of the said Fan, as the executor of the said William, and though often requested by them, refused to deliver her, or to pay over the legacy of one dollar bequeathed by the will. The defendant answered the petition, and in his answer set forth that the petitioners intermarried in the year 1823; that previously to the marriage, the petitioner, Susan, who lived with...