Pace v. Pace

• Decision Date: 30 June 1875
• Court: North Carolina Supreme Court
• Parties: SUSAN PACE v. P. P. PACE, Adm'r. of MARY VADEN.

73 N.C. 119

SUSAN PACE

v.P. P. PACE, Adm'r. of MARY VADEN.

Supreme Court of North Carolina.

June Term, 1875.

*1 A devised as follows: “I give and bequeath to my executor, &c., in trust for the use and support, &c, all my stock, &c.; and none of the above named money or property to be subject to the disposal or debts of the said, & c.: Held, that as the property and money was not limited over in case of disposal, the prohibition against disposing of the same was void.

Where B agreed to act as agent and settle the estate of the testator without letters of administration, and C agreed to support D, provided she would assign her life interest in the notes and money bequeathed in trust for her by the testator, to certain parties mentioned in the will, and in pursuance of this agreement D did assign her interest: Held, that as to B, the consideration was unlawful, and as to C, it was too vague and indefinite to support the assignment; and that D was entitled to an account of the notes and money from B, who after the agreement took out letters of administration.

(The cases of Dick v. Pitchford, 1 Dev. & Bat. Eq. 480; Mebane v. Mebane, 4 Ired. Eq. 131, cited and approved.

CIVIL ACTION, in the nature of a special proceeding, to recover a legacy, tried at the January (Special) Term, 1875, of the Superior Court of WAKE County, before his Honor, Judge Henry.

The suit is brought against the defendant as the representative of Mary Vaden deceased, to recover a legacy, to-wit: the interest on all the money of said Mary Vaden, during the lives of the plaintiff and her husband Willis Pace, and the life of the survivor of them--the said Willis being dead at the commencement of this action.

The defendant pleaded that the plaintiff had released and assigned the said legacy to the persons to whom the money was given by the said will after the death of the plaintiff and her husband. Those thus taking were seven in number, as will appear from the following copy of said Mary Vaden's will, to-wit:

“In the name of God, amen: I, Mary Vaden, of the State of North Carolina, Wake county, being of sound and perfect mind and memory, Bless be God for the same! do, this 13th day of May, in the year of our Lord, 1862, make and publish this, my last will and testament, in manner following:

After paying all my just debts: First, I give and bequeath to my executor or executors hereafter mentioned, and their survivors, the following property, viz.: All my lands now belonging to me--one tract adjoining Jesse Bunch and William Parrish, and one other tract adjoining Benjamin Marriott and others, containing two hundred acres, more or less, in trust for the use and better support of Willis Pace and his wife, Susan Pace, during their life, or the survivor of them during life. And at their death my will and desire is that all the above named land, (say two hundred acres,) be equally divided between Willis Pace's three sons, share and share alike--that is, I give and bequeath the said land to Sidney T. Pace, Presley P. Pace and Wesley W. Pace, to them and their heirs forever.

I give and bequeath to Mazra J. Pace, one feather bed, stead and furniture.

I give and bequeath to Ann E. Pace, one feather bed, stead and furniture.

I give and bequeath to Burline L. Pace, one feather bed, stead and furniture.

I give and bequeath to Sidney T. Pace, one feather bed, stead and furniture.

I give and bequeath one feather bed, stead and furniture, to W. W. Pace.

I give and bequeath to my executor or executors hereafter mentioned, and their survivors, in trust for the use and support of Willis Pace and his wife Susan Pace, during their natural lives, all my stock of horses, cattle and hogs, and all my household and kitchen furniture, and one gig and harness, one cart and wheels, one side and one man's saddle, and all my farming utensils; also all my money and notes, the interest of which, my will and desire is, may be applied to the support of the said Willis Pace and wife, Susan Pace, during their lives; and none of the above named money and property to be subject to the disposal or debts of the said Willis or Susan Pace. And at the death of the said Willis Pace and wife, Susan Pace, or the survivor of them, my will and desire is, that his six daughters, viz.: Martha B. Bagwell, Phutha O. Bunch, Mary H. Pace, Mazra J. Pace, Anne E. Pace and Burline L. Pace, receive equal dividends, share and share alike, from my executor, all the money and notes then in hand, to them and their heirs forever. Also at the same time, my will and desire is, that the above named daughters, with the said Willis Pace's three sons, Sidney T. Pace, Presley P. Pace and Wesley W. Pace, making nine of them, receive, share and share alike, equal from my executor, all my stock of horses, cattle and hogs, household and kitchen furniture, and all other perishable estate, not above given away, to them and their heirs forever.

I do hereby nominate and appoint my friends Joseph Fowler, Jr., and Daniel Scarborough, executors to this my last will and testament.

In witness whereof,” &c.

Issue being joined upon the pleadings in the Probate Court of Wake county, the case was carried up to the Superior Court for trial; and the following issues were submitted to a jury at the term before stated, to-wit:

(1.) Did Susan Pace execute a release of her interest in the estate of Mary Vaden, (except the land,) to those entitled according to the will?

(2.) Did Susan Pace sign an instrument relinquishing her interest in the estate of Mary Vaden, knowing at the time that she had an interest in the note and money of the estate?

(3.) Was the paper writing in question signed by Susan Pace; did she know its contents, and was it under seal?

It was in evidence that the plaintiff had executed and delivered a paper writing, purporting to be her relinquishment of her interest under the will of Mary Vaden, to the next kin as named in said will, and that said paper writing had been lost.

Upon the question as to whether it was under seal, R. C. Badger, Esq., an attorney of the Court, was introduced as a witness, and testified, that said relinquishment or release had been exhibited to him as an attorney, by the defendant, and his counsel asked upon the effect; that he had advised him that the same was a valid release in law, of the legacy mentioned by the plaintiff to the parties aforesaid; but that he had no distinct recollection as to whether said paper was under seal or not. The counsel for the defendant then asked the witness whether he would have advised the defendant as aforesaid unless such relinquishment had been under seal. This question was objected to by the plaintiff, but admitted by the Court; and the witness stated that he would not so have advised had there not been a seal.

D. G. Fowle, Esq., another attorney of the Court, being sworn as a witness, stated that he had seen and had in his possession the paper writing, and had advised the defendant that it was a valid release, and that he would not have done so had it not been under seal.

It was in evidence that the executors under the will having renounced, P. P. Pace had agreed to act as agent to settle the estate; and that an agreement was drawn up and signed by all the parties authorizing him so to act. And that on the day of sale he refused to act further unless the plaintiff signed the release; and that all the parties signed the agreement above mentioned; that the paper was read over to plaintiff and she assented thereto, having previously executed and delivered it. It was in evidence also that W. W. Pace had agreed to support her, provided she executed the release.

The counsel for the plaintiff asked the Court to charge the jury that said instrument was not in law a release, but an attempted assignment of a chose in action. That in law no valid assignment could be made of such chose in action; and that the same could only be supported in equity when founded on a valuable consideration. In this case there was no evidence of a valuable consideration, and they must find for theplaintiff. This prayer for instructions was refused by his Honor, and the plaintiff excepted.

Upon the issues submitted to them, the jury found:

1. That Susan Pace did execute a release of her interest in the estate of Mary Vaden, except the land, to those entitled under the will.

2. That Susan Pace did sign an instrument relinquishing her interest in said estate, knowing at the time that she had an interest in notes and money of said estate.

3. That the paper writing in question was signed by Susan Pace; that she knew its contents, and it was under seal.

Judgment was thereupon rendered...