Nelson v. Whitfield

• Decision Date: 31 January 1880
• Court: North Carolina Supreme Court
• Parties: J. O. NELSON and others v. GEORGE WHITFIELD and others.

82 N.C. 46

J. O. NELSON and others

v.GEORGE WHITFIELD and others.

Supreme Court of North Carolina.

January Term, 1880.

SPECIAL PROCEEDING heard on appeal at Fall Term, 1878 of PITT Superior Court, before McKoy, J.

This is a petition for partition commenced before the clerk of Pitt superior court. The plaintiffs allege that the feme plaintiff and the defendants, George Whitfield and Mary the wife of Robert Whitehurst, and some others, are the heirs at law of one Benjamin Whitfield, who died intestate in Pitt county in the year 1840, seized and possessed of the land in controversy; that they are tenants in common, and they pray that partition may be made of said land.

The defendants on the contrary say it is not true that Benjamin Whitfield died intestate, but that he left a last will and testament which was duly admitted to probate in the court of pleas and quarter sessions of Pitt county soon after his death, and was recorded in said court; that the original will with the records of said court was destroyed by fire, when the court house was burned in the year 1858; and that the testator devised the one half of said land in dispute to his wife, Temperance Whitfield, until his son, Jesse T. Whitfield, should come of age, and then to the said Jesse in fee; and the other half of said land to the said Temperance during her life, and upon her death, to the said Jesse in fee.

The issue raised by the pleadings in the proceeding before the clerk was transmitted to the superior court to be tried by a jury, when the jury were impaneled and the following issue submitted to them--“Did Benjamin Whitfield, deceased, die leaving a last will and testament, and was the same duly admitted to probate, by which will he devised one half of the land whereof he died seized, to his wife, Temperance, until Jesse T. Whitfield, his son, should come of age, and the other half to his wife, Temperance, for life and after her death to his son, Jesse T. Whitfield.”

There is no direct proof in the case that the court house, with the records of the courts of the county, was burned.

On the part of the defendant, evidence was given by the testimony of one Cherry, that he was present at the burial of Benjamin Whitfield in the year 1840, being then twelve or thirteen years old, and heard a paper twice publicly read in the presence of the crowd there assembled, as the last will and testament of Benjamin Whitfield, which gave one-half of his land to his wife until his son Jesse arrived at twenty-one years of age, and then to Jesse in fee, and the other half to his wife during her life and then to the said Jesse in fee; that the plaintiffs, Elizabeth and Artemisia, were present in the crowd, but did not know whether they heard the will read or not; that he did not read the paper and knew nothing of its contents except as he heard it read; that he had heard Temperance, the widow of Benjamin Whitfield, while in the possession of the land, say that she held under the will of her husband. This portion of the witness's testimony was objected to, and the objection overruled. He further testified that Jesse Whitfield became of age and married in 1853, and took possession of and cultivated one-half of the land until he died, and his widow lived there until her marriage; that then the guardian of the defendants, the children of Jesse, in 1859 took possession of that part and rented it out until the death of Temperance, when he took possession of the whole and rented it out until the children became of age, and they have held the possession ever since; that Elizabeth lived with her mother until her marriage with the plaintiff, Nelson, and Artemisia lived with her until her death.

Henry Sheppard was next examined as a witness on the part of the defendants, and testified that about the year 1857, or 1858, (but was not certain) while clerk of the county court of Pitt county he copied the will of Benjamin Whitfield from the will-book, but did not remember for whom it was ?? d, nor did he recollect anything of its contents.

The defendants then proved by Patience Manning, the widow of Jesse Whitfield and mother of the defendants, that she married Jesse Whitfield in December, 1853, and they lived with Benjamin Whitfield's widow until the following July; that Jesse built a house on a part of the land, and they lived there; that in 1854, she heard what purported to be Benjamin Whitfield's will read by one Hopkins, and that Temperance requested her to get the will from a tin box where she found it among other papers and carried it to Hopkins who read it aloud in the presence of Temperance, Artemisia and herself; that she has no knowledge of the contents of the will, nor whether it had witnesses, nor by whom it was signed, but she remembers that as she heard it read, it disposed of the land as testified to by the witness Cherry. This evidence was objected to, and objection overruled.

One Gray Manning was then introduced and testified that in February, 1877, he heard Artemisia, one of the plaintiffs, tell his wife that it was reported that Elizabeth carried the will away, but that it was not so, for she had carried it away herself and had put it in a trunk from which it was stolen; that Elizabeth had administered upon the estate of her mother, Temperance, and that Artemisia could neither read nor write.

One Fred Bryan testified that he heard the paper read in 1853, and his recollection of its contents is substantially the same as that of the witnesses, Cherry and Patience Manning. This evidence was objected to, and objection overruled.

Defendants then proved by one Lee, that he became the guardian of Jesse Whitfield's children in the year 1859; the land was then in two lots, having been divided between Temperance and Jesse; that in 1866, Temperance died, and witness then took possession of the other part and rented it out. The “division papers” having been spoken of, the record of the partition between Temperance and Jesse was introduced, but no objection made, further than that the plaintiffs were not parties to the petition.

The plaintiffs then demurred ore tenus to the evidence that had been adduced on the part of the defendants, and the court declined to compel the defendants to join in the demurrer without their consent, which was not given. The jury found the issue submitted to them in the affirmative. The plaintiffs then moved for a writ of procedendo, non obstante veredicto, which was refused and the plaintiffs appealed.

Messrs. Gilliam & Gatling, for plaintiffs .

Mr. W. B. Rodman, for defendants .

ASHE, J.

This case has been imperfectly made up. It is remarkable that as all the evidence in the case is based upon the fact that the records of Pitt county were destroyed by fire, there is not a word of proof in the whole case that the court house with the records had been destroyed by fire in the year 1858. But from the pleadings, the character of the exceptions to evidence, and the argument of counsel, we must conclude that that fact was conceded.

At the date of the alleged execution of the will, the courts of pleas and quarter sessions had jurisdiction of the probate of wills, and were directed to order them to be recorded in proper books kept for that purpose. Rev. Stat., ch. 123, § 4. They were to be recorded in these books after probate had. The fact then that a will of Benjamin...