Redmond v. Collins

• Citation: 15 N.C. 430
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1834
• Parties: ALECIA REDMOND and others v. JOSIAH COLLINS and others.

15 N.C. 430

ALECIA REDMOND and others

v.JOSIAH COLLINS and others.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1834.

Where a will giving the executors power to sell land, and directing them to pay the interest of the personalty to a married woman for her life, and after her death to divide the whole and the rents of the land between her children, was propounded by the executors, and upon the caveat of her husband was rejected, the sentence is conclusive both upon her infant children then in being and those born afterwards.

This was a petition originally filed in the County Court of EDGECOMBE against the defendant Collins alone. The plaintiffs stated that Francis Perie died in the year 1810, having duly made and published his last will, whereof he appointed Ben-net Barrow and James Southerland executors. That the testator left Elizabeth Redmond, the mother of the plaintiffs, his only child. That the said will was offered for probate by the executors at the May Term, 1810, of the County Court of Edgecombe, when a caveat to its probate was entered by Daniel Redmond, the father of the plaintiffs, which was tried instanter, "when by some unaccountable infatuation or corruption of the jury impaneled to try the same, or by some fraudulent combination between the said executors and the said Daniel Redmond," the issue was found against the executors although both the due execution of the will, and the sanity of the testator were proved by the clearest testimony. That the plaintiffs having no one to protect their interest, and the executors

fraudulently refusing to appeal, the judgment upon the verdict remained unreversed, and as a consequence of this judgment, administration upon the estate of the defendant was committed to Daniel Redmond, who wasted the whole of the personalty, which was very valuable and together with his wife, Elizabeth, above mentioned, conveyed a part of the land of which her father died seized, to the defendant.

The prayer was for process against the defendant, and for a re-probate of the will.

A copy of the will was attached, the material parts of which are as follows:

"My will and desire is, that my houses and lots,together with my plantation, be rented out at the discretion of my executors for the term of eighteen years, the said houses, lots, and plantation to be sold by my executors at public sale on a credit of twelve months.

"My will and desire is, that my executors pay to my daughter, Elizabeth Redmond, yearly, all the interest that may accrue upon the whole of my estate in their hands, exclusive of the value of my houses and lots and plantation, until the term of eighteen years.

"My will and desire is, that my executors shall hold all the residue of my estate in their hands for the term of eighteen years, at the end of which said term of eighteen years, my will and desire is, that two-thirds of the estate, including the houses, lots, and plantation, and all other things so remaining in the hands of my executors, shall be equally divided, or belong to the lawful heir or heirs of her body begotten, which my said daughter, Elizabeth, may have at the expiration of the said term of eighteen years, and the balance of one-third is to be retained in the hands of my executors during the natural life of my said daughter, Elizabeth. The said executors paying her yearly all the interest that may accrue on the said balance of one-third until her death, at which time, if she shall have living another child of children, which of course will be after the first division of two-thirds of my estate, my will and desire is, that the last child or children shall have all the balance of the one-third of my estate remaining in the hands of my executors at the death of my daughter, and in case there is no increase of my daughter after, the first division of two-thirds, that the balance of one-third shall descend in the same manner as the first two-thirds,"

By an amendment made at a term subsequent to the filing of the petition, Bennet Barrow and James Southerland, the executors, were made defendants.

The defendant, Collins, in his answer denied that the verdict against the supposed will was the result of corruption in the jury, or of a fraudulent combination between theexecutors and Redmond, the father of the paintiffs, and averred that he was a purchaser for value, and without notice. He also insisted that the sentence upon the caveat of Redmond was conclusive of the rights of the plaintiffs.

The answer of the executors unequivocally denied all fraud and all combination between them and Redmond; they stated that they procured respectable counsel to offer the will for probate, and furnished him with testimony which- they were advised was sufficient to establish it, and that the issue was found against them in consequence of some mistake made by the jury, and not from corrupt motives. They admitted that they were dissatisfied with the verdict but declined taking an appeal as the matter bid fair to be extensively litigated, and they had no fund from which they could be idemnified in case of failure, in which event they were advised they would be liable to pay them. The County Court directed the will to be propounded anew, and the defendants appealed.

On the Spring Circuit of 1833, the cause was submitted to his Honor, Judge Martin, upon the petitions and answers, together with a statement of facts which set forth the death of Porie—the propounding of the will for probate—the result of the trial, and the terms of the will as stated in the petition. The case also stated that at the time of that trial, the plaintiff, Alecia, was in being, but was an infant of very tender years, and that the other plaintiffs were the children of Daniel and Elizabeth Redmond, born since the trial, but before the expiration of eighteen years from the death of Porie. That Alecia came of full age a few months before the filing of the petition, and that the other plaintiffs were still infants. That the verdict was probably wrong, owing to a misapprehension of the nature of the issue, but was not the result of any combination between the executors and Redmond, or of a fraud on the part of the former. That one William Ross had purchased a part of the real estate of which the testator died seized, from Redmond and his wife, and had sold it to the defendant, Collins, who was a purchaser for value, and without notice of any defect in the title of his vendor, and had been many years in possession.

His Honor dismissed the petition, and the plaintiffs appealed.

RUFFIN, C. J. This is an application by petition, to prove a paper as the will of Francis Porie, deceased. It is not made by persons who claim an interest under the paper, as legatees and devisees. It comes before this Court on appeal from the decision of the Superior Court dismissing the petition, and the questons here arise on the pleadings, and a case agreed by the parties in the record.

This is not an original application. It is stated in the petition that Barrow and Southerland named in the paper as the executors, did in that character offer the same paper for probate in 1810, to which Daniel Redmond, the father of the petitioners, and the husband of Elizabeth, the only child of Porie, entered a caveat. That thereupon an issue of devisavit vel non was made up, on which the jury found, that the paper was not the last will and testament of the party deceased, upon which the Court pronounced against the paper as a will, and granted administration to Redmond, the caveator. The petitioners allege that the verdict was the result of some unaccountable infatuation or corruption of the jury, or of a fraudulent combination and contrivance between the executors and Redmond, and they found the charges on the circumstances that the factum of the will, and the sanity of Porie were indubitably proved, and that the executors neglected to appeal.

The paper is exhibited and contains the following provisions: "My will is, that my houses and lots, together with my plantation be rented out by my executors for eighteen years, and then to be sold by my executors." The profits of the whole, except the real estate to be paid to his daughter by his executors for that term. The paper then goeson, "my will further is, that my executors shall hold all the residue of my estate in their hands for the said term of eighteen years, and at the end thereof my will is that two-thirds of the estate, including the houses, lots, plantation and other things so remaining in the hands of my executors, shall be equally divided or belong to the heir or heirs of her body, which my said daughter may have at that time, and the other third to be retained by my executors during the life of my daughter for her use, and at her death to go to such children as she may then have," in certain proportions.

Redmond disposed of all the personal estate (which was a large one), to persons unknown, and he and his wife conveyed the lands in fee, and they have since come by purchase, for valuable consideration, to Josiah Collins, who is in possession claiming title. It is admitted in the case agreed, that he had no notice of any defect of title when he purchased.

The petitioners are the only children of Mrs. Redmond, of whom one was born and of very tender years, at the former trial, and the other soon afterwards, and this proceeding was instituted soon after their coming to full age. Both their father and mother are dead.

The prayer is that the paper may now be admitted to probate, and that a copy of the petition may be issued to Collins, and he required to answer, and afterwards it was amended by having copies served on the executors, and calling for an answer from them.

The answer of Collins states the circumstances of his purchase, as already mentioned. Those of the executors explain the details of the trial, and admit that the verdict was in their opinion erroneous, but they deny any fraud on their part, and state that they employed...