Price v. Price

• Decision Date: 24 November 1903
• Citation: 45 S.E. 855,133 N.C. 494
• Parties: PRICE v. PRICE et al.
• Court: North Carolina Supreme Court

45 S.E. 855

133 N.C. 494

PRICE v. PRICE et al.

Supreme Court of North Carolina

November 24, 1903

Appeal from Superior Court, Union County; C. M. Cooke, Judge.

Action by J. Mc. Price against B. F. Price and others for specific performance of a contract to devise certain lands. There was a judgment for defendants, and both plaintiff and defendants appeal. Affirmed.

Montgomery J., dissenting.

Where a testator, in consideration of the release by his children of their interest in certain land of their mother, contracts to devise to them certain lands, a devisee seeking specific performance of the contract cannot be required to elect whether he will take under the will or under the contract, as election was not involved.

A. M Stack, for plaintiff.

J. A Lockhart & Son, Burwell & Cansler, Adams, Jerome & Armfield R. L. Stevens, and R. W. Lemmond, for various defendants.

CONNOR J.

It is clear that the contract of December 6, 1899, entered into between J. W. Price and his children, the plaintiff and defendants herein, was well understood between them, and that it was the purpose of the parties to settle the unhappy controversy growing out of the execution of deeds to the father by his former wife and the mother of the plaintiff and defendants, for her maiden land. It will be observed that J. W. Price had married on December 4, 1855, and that this deed was executed during the year 1859. The wife and mother survived until 1881. Two of her five children brought suit in 1899, charging that their father had procured the execution of the deed by undue influence and persuasion. The complaint further alleges that since the death of his wife he had married a second time, and had other children. They further allege that the father had settled plaintiffs on lands other than those conveyed to him by his wife, but had given them notice to vacate them, and advertised the said lands for sale. The father, in that suit, filed his answer, admitting a portion of the allegations, denying others, and setting up affirmative defenses. It appears that on September 20, 1889, the father had a portion of his land surveyed, plats made thereof, and divided into lots, with a view to partitioning it among his children, and that in making such partition he allotted a tract of 183 acres to the plaintiff, J. Mc. Price, who was at that time in possession thereof. It will be further observed that on December 6, 1899, just 44 years had passed since his marriage to the mother of his children. It appears from the pleadings that they had all reached their majority. It is not unreasonable to assume that he was approaching the allotted limit of human life. A second wife and one child of his old age were dependent upon his providence and care. The years of his strength had been devoted to the rearing of the five children of his first marriage, and he had made provision for his oldest sons. One son, it appears, was of feeble mind. The daughter was unmarried, and, the plaintiff says, "too old to ever be a mother." One son, B. F. Price, was unmarried, and, it would seem, had remained at home with his father. The two sons who were married had been settled upon parcels of land, and had received their portion of the personalty. In this condition of his affairs and family, we can well understand that he desired to settle the controversy and be at peace with his children. Placing ourselves in the position of the parties, we are better able to understand their conduct, and construe the contract which they made looking to this end. Thus, on December 6, 1899, they executed the paper writing, the terms and provisions of which we are called upon to construe. Following the formal parts thereof, they proceed to say "that the said parties of the first part, children of J. W. Price, in consideration of an agreement on the part of J. W. Price to devise to the parties of the first part, J. Mc. Price, J. Robert Price, Sarah E. Price, John C. Price and Benjamin F. Price, respectively, with limitations, the lands belonging to J. W. Price, including that herein conveyed or a part thereof, which have been divided and allotted to the several parties of the first part according to the two plats of the lands made by L. A. Helms, surveyor, and dated Sept. 20, 1889, the part devised to Benjamin F. Price to be charged with the support and maintenance of Margaret M. Price, wife of J. W. Price, if she survives him, which plats are here referred to as a part of this deed, and to which reference is made for the location and description of the lots, of which the respective parties have been put in possession." Then follow appropriate words by which the children "remise, release and forever quitclaim" unto J. W. Price all of their right, title, and interest in and to the lands conveyed to him by their mother, which is described by metes and bounds. Immediately after the habendum is the following clause: "The further consideration of this deed is an agreement on the part of J. W. Price to devise to J. Robert Price and his heirs the David Phifer place of one hundred acres, of which he is now in possession, but is not described in the plat referred to hereinbefore." This contract was duly proved and recorded January 17, 1900, and on the same day the said J. W. Price executed his will. He gives to his wife and children his household and kitchen furniture, stock on hand, and some small legacies. He provides that his stock, etc., shall be used for the benefit of his children ""while said family shall remain together," mentioning the fact that his sons J. Mc. Price and J. Robert Price have had their full share of his personal property. He then gives to B. F. Price and Sarah E. "three hundred dollars jointly to assist them in the support and maintenance of my son, J. C. Price, with whose support and maintenance I charge this sum and the lands devised to them in the sixth item of this will." In the fourth item he devises, "in lieu of the dower and thirds" to which his wife was entitled, to her and to B. F. Price, several tracts of land, including his dwelling house and outhouses, aggregating 351 acres. The several tracts, he says, "are more particularly shown on a plat made by L. A. Helms on September 20, 1889, to which plat reference is hereby made." This land he gives after the death of his wife to B. F. Price in fee. He further provides and directs that his son J. C. Price and his daughters Sarah E. Price and Mary E. Price (the child by his second wife) shall have a home with his son and his wife until they shall severally marry. This provision is to continue in the event of the death of B. F. Price; that is, they shall continue "to have a support from, and home upon the land." In item 5 he gives to his daughter Sarah E. Price three tracts of land, aggregating 162 1/2 acres, two of which tracts are shown on the L. A. Helms plat. One tract, of 11 1/2 acres, he says, was purchased in 1897, after the plat was made. In item 6 he gives to his son B. F. Price and his daughter Sarah E. Price, "charged with the support and maintenance of my son J. C. Price and subject to the provisions of item 4," three tracts, aggregating 130 1/4 acres, two of which tracts are shown on the L. A. Helms plat. The other tract, of 10 3/4 acres, was purchased in 1897. In item 7 he gives to his son J. Mc. Price 183 acres, shown on the L. A. Helms plat. To this devise are certain limitations, which will be referred to later on. In item 8 he devises to J. Robert Price the David Phifer land, containing 100 acres. To this devise are certain limitations. All other real estate owned by him is directed to be sold by his executors, and after paying debts and pecuniary legacies the balance is to be divided equally between his children. In item 11 he says that in order to make more definite and certain the identity and location of the lands hereinbefore devised, and the respective persons to whom they are devised, "I have written the names of each and every of the parties within the boundaries of the plats made by L. A. Helms and M. D. L. Biggers," etc.; the last-named plat being of the two small tracts purchased in 1897. By a codicil executed September 24, 1901, it appears that, with the consent of his son J. Robert Price, he exchanged the Phifer land for a tract of 172 acres, which he devises to his said son. The date of his death does not appear in the record.

This action was brought November 14, 1902, by the plaintiff against his brothers and sisters and the executors of J. W Price. The plaintiff alleges that the said J. W. Price "failed and refused to perform his said contract, in that he did not devise to him any part of the two tracts of land conveyed to said J. W. Price by his wife, and described in the contract of December 6, 1899," and further that whereas he contracted to devise said land to his children "respectively, with limitations," he placed no limitations on the land devised to B. F. and Sarah E. Price, while he did place limitations on the land devised to the plaintiff and J. Robert Price. He says that "the said J. W. Price contracted to devise to J. Mc. Price [plaintiff] and his brothers and sisters the same quantity and quality of estate in said lands, yet B. F. Price and Sarah E. Price, instead of getting two-fifths, with the same limitations that were placed on the plaintiff, get in fee simple more than three-fourths of the land contracted to be devised to the five children of M. L. Price, and get all of the two tracts that were in litigation and described in Exhibit C; that he failed to devise any land to J. C. Price, who is weak-minded and incapable of looking after his rights, and who is an unmarried man, without children, and not likely to ever marry and have children; that Sarah E. Price is unmarried, and too old now...