Phifer v. Giles

• Decision Date: 15 May 1912
• Citation: 74 S.E. 919,159 N.C. 142
• Parties: PHIFER v. GILES et al.
• Court: North Carolina Supreme Court

74 S.E. 919

159 N.C. 142

PHIFER v. GILES et al.

Supreme Court of North Carolina

May 15, 1912

Appeal from Superior Court, Mecklenburg County; Lyon, Judge.

Proceedings for an allotment of dower by Belle McGhee Phifer against Wilhelmina Phifer Giles and others. From a judgment sustaining a demurrer to the amended petition, the petitioner appeals. Reversed, and demurrer overruled.

Where parties, entitled under a will to property in its converted form, elect to take it in its original form, there is a reconversion; and this election may be inferred from acts or conduct manifesting an unequivocal intention to so elect.

See also, 157 N.C. 221, 72 S.E. 1006.

This is a proceeding for the allotment of dower; the petitioner claiming as the widow of R. S. Phifer, who was one of seven children of M. M. Phifer.

A demurrer was filed to the original petition, which was sustained, and the petitioner excepted and appealed to this court. The appeal was heard at the last term, and the judgment of the superior court was affirmed. Upon the opinion of the Supreme Court being certified to the superior court the petitioner filed an amended petition, by permission of the court, by adding the following paragraphs to the original petition:

"(9) That after the execution of the last will and testament of M. M. Phifer, referred to in paragraph 3, and before her death, said M. M. Phifer paid the purchase money for the real estate referred to in the last will and testament of M. M. Phifer, and received a deed from said Joseph H Wilson, conveying to her the land therein referred to in fee, it being the first tract of land described in the second paragraph of this complaint, and thereby became the owner of the legal and the equitable title to said property before her death, and at the time of her death was seised of said real estate in fee.

"(10) That W. W. Phifer, executor of said last will and testament, has filed no report of his dealings with said real estate, either as executor or trustee, in the office of the clerk of the superior court of Mecklenburg county, as required by law; that W. F. Phifer died on the 30th day of December, 1882, and never qualified as executor of said last will and testament, and this petitioner is informed, advised, and believes that the deceased, M. M. Phifer, died owing no debts; that there was sufficient personal estate belonging to said M. M. Phifer at her death to pay all of her debts, and all of said debts, if any, have long since been paid.

"(11) That a portion of the land hereinbefore described has been cut up into city lots, some of said lots have been sold and conveyed to various persons, deeds to which have been executed by W. W. Phifer, as executor and trustee, and by W. W. Phifer an the other devisees named in said last will and testament, except R. S. Phifer; but the petitioner alleges that the greater part of said real estate has never been sold, and that the defendants George M. Phifer, Cordelia W. Phifer, Josie P. Durant, Mary W. Quinn, E. W. Phifer, and W. W. Phifer, being all the devisees and heirs at law of M. M. Phifer, deceased, except R. S. Phifer, deceased, are now in the actual possession of said unsold land.

"(12) That on the -- day of October, 1906, the defendants W. W. Phifer, individually and as the executor of the will of M. M. Phifer, Edward W. Phifer and wife, Annie Phifer, and Mary C. Quinn and husband, M. C. Quinn, Josie P. Durant, Cordelia W. Phifer, and George M. Phifer entered into an agreement in writing, whereby they attempted to divide among themselves a part of the land described in the second paragraph of this petition, which said written agreement is recorded in the office of the register of deeds of Mecklenburg county in Book 209, page 494, a copy of which is hereto attached, and marked 'Exhibit C.'

"(13) That there still remains a part of said land in the possession of the defendants George M. Phifer, Cordelia W. Phifer, Josie P. Durant, Mary W. Quinn, Edward W. Phifer, and W. W. Phifer yet undivided and unsold.

"(14) That this petitioner is informed, advised, and believes that the defendant W. W. Phifer, trustee and executor, has sold and disposed of more than enough of the land, hereinbefore described, to pay off all of the debts of M. M. Phifer, deceased, and to pay all of the devisees named in said last will and testament of the said M. M. Phifer a sum of money equal to the amount advanced to R. S. Phifer by said M. M. Phifer, as referred to in her said last will and testament, and that all of the trusts, charges, obligations, and duties imposed upon said W. W. Phifer, executor and trustee, by the said M. M. Phifer in her last will and testament have been fully discharged and satisfied, and that all of said duties, trusts, charges, and obligations imposed upon said W. W. Phifer, executor and trustee, were either performed by M. M. Phifer during her lifetime, and after the execution of her said last will and testament, or by W. W. Phifer, trustee, after the death of M. M. Phifer and before the death of the petitioner's husband, R. S. Phifer, and that at the time of the execution of Exhibit A said R. S. Phifer was seised and possessed of a one-seventh undivided interest in the land described in paragraph 2 of this petition, except such land as the trustee, W. W. Phifer, had sold off for the purpose of applying the proceeds of the sale to the payment of the debts of M. M. Phifer, and the payment of the devisees named in the last will and testament of said M. M. Phifer, an amount of money equal to the amounts advanced by the said M. M. Phifer in her lifetime to the petitioner's husband, R. S. Phifer.

"(15) That your petitioner is informed, advised, and believes that her said husband, R. S. Phifer, at the time said deed (Exhibit A) by him purports to have been made, was seised and possessed of a one-seventh undivided interest in the land described in paragraph 2 of this petition, except such lands as were actually sold by W. W. Phifer, executor and trustee, prior to the date of Exhibit A, for the purpose of applying the proceeds of such sale to the payment of the debts of M. M. Phifer, and to the payment to said devisees, except R. S. Phifer and W. W. Phifer, an amount of money equal to the amount advanced to said R. S. Phifer, referred to in said last will and testament; and your petitioner desires to have her dower in said lands allotted to her, and to that end she prays the court to issue a writ to the sheriff of Mecklenburg county, commanding him to summon three freeholders, connected with the parties neither by consanguinity nor affinity, entirely disinterested, and qualified to act as jurors, to view the said lands, and to allot to your petitioner a one-third part of the one-seventh undivided interest in said lands, as hereinbefore set out, for the term of her natural life and to report their proceedings to this court in due form of law."

A demurrer to the amended petition was sustained, and the petitioner again excepted and appealed.

The facts stated in the original petition, the will of M. M. Phifer, and the papers executed by R. S. Phifer are fully reported on the former appeal. 157 N.C. 221, 72 S.E. 1006.

W. F. Harding, for appellant.

Burwell & Cansler, Tillett & Guthrie, Cameron Morrison, and Maxwell & Keerans, for appellees.

ALLEN, J. (after stating the facts as above).

When this case was before us on the former appeal, it was decided, upon the allegations then made, that the petitioner was not entitled to dower, as it was not made to appear that any part of the trusts declared in the will of M. M. Phifer had been executed, or that any part of the land devised in said will remained unsold, or that it was unnecessary to sell all of said land, or that after the payment of the debts and charges there would be any surplus.

It was also intimated that the trusts declared in said will were active trusts, and that a...