Ricks v. Wilson

• Decision Date: 22 September 1909
• Parties: RICKS. v. WILSON et al.
• Court: North Carolina Supreme Court

65 S.E. 614

151 N.C. 46

RICKS.

v.WILSON et al.

Supreme Court of North Carolina.

Sept. 22, 1909.

1. Husband and Wife (§ 221^*)—Action by Wife Respecting Separate Property — Husband as Party.

Where a wife sues to recover property as her separate property, the husband need not be joined with her, under the express provisions of Revisal 1905, § 408, subd. 1.

[Bd. Note.—For other cases, see Husband and Wife, Cent. Dig. § 707; Dec. Dig. § 221.*]

2. Appeal and Error (§ 257*)—Necessity for Exceptions.

Where a defendant was not made a party in her capacity as administratrix, and the judge ordered her made a party, and there is no exception, that point is not reviewable.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 257.*]

3. Action (§ 38*)—Misjoinder.

A complaint alleging that plaintiff's father and her mother, to whom the father had caused lands to be conveyed in trust for himself, deeded to a defendant the lands in parol trust to hold and dispose of as the father might subsequently direct; that the father subsequently executed a writing, whether a deed or will, plaintiff was not advised, whereby he executed the reserved power of appointment, appointing for plaintiff certain land, and directed enough cash to be given her to make her share equal in value to other land assigned to her brother by the writing, and directed an equal division of other personalty between plaintiff and her brother; that defendants destroyed the writing and took possession of the lands, money, and other personalty; and asking that the trusts be executed in accordance with the writing—states but one cause of action for the enforcement of the written paper; and it was error to require the action to be divided into one for the personalty, with part of the money, and another for the realty.

[Ed. Note.—For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]

4. Wills (§ 205*)—Probate—Necessity.

Inasmuch as plaintiff was not seeking to prove a will, and was not claiming under the writing as a deed or as a will, it was error to require her to bring a new proceeding to probate the writing as a will, on penalty of dismissal.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 507, 509-512;-Dec. Dig. § 205.*]

5. Action (§ 60*)—Misjoinder.

If three actions were proper, the order should be to divide the pending action into three, and not to give leave to bring two new actions under penalty of dismissal of the pending action, under Revisal 1905, § 476, providing that, if demurrer be allowed for improper joinder of several causes of action, the judge shall order the action to be divided into as many actions as may be necessary, etc.

[Ed. Note.—For other cases, see Action, Cent. Dig. § 699; Dec. Dig. § 60.*]

6. Lost Instruments (§ 3*)—Establishment —Equity.

If a deed or will is destroyed or suppressed, equity can give relief.

[Ed. Note.—For other cases, see Lost Instruments, Cent. Dig. § 8; Dec. Dig. § 3.*]

Appeal from Superior Court, Pitt County; Cook, Judge.

Action by Bessie W. Ricks against Julia H. Wilson and another. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

Skinner & Whedbee and J. L. Fleming, for appellant.

Moore & Long and Jarvis & Blow, for appellees.

CLARK, C. J. The plaintiff is the daughter of R. J. Wilson, deceased, and the defendants are her mother and brother. The complaint alleges that R. J. Wilson purchased divers tracts of land, describing them, taking deed to himself; that he had purchased others, also describing them, to which he caused the title to be made to his wife in trust for himself; that another tract of land, duly described, he conveyed direct to his wife, but, though in form a deed, it was in fact a mortgage to secure the sum of $600, which R. J. Wilson afterwards paid off (the dates of above conveyances are each given); that on January 23, 1899, R. J. Wilson and wife, by deed, conveyed all the lands above described to the defendant Jesse P. Wilson in consideration of the nominal sum of $10, reserving a life interest to themselves; but the complaint avers that in truth the conveyance was to Jesse P. Wilson in parol trust to hold such lands to be used and disposed of as the trustor. R. J. Wilson, might subsequently direct and appoint, and that Jesse P. Wilson accepted the conveyance upon such express trust to hold for future appointment by the trustor, R. J. Wilson—R. J. Wilson in the meantime remaining in sole control of all of said property and in sole receipt of all the rents and profits thereof; Julia H. Wilson and Jesse P. Wilson "acknowledging on all occasions that R. J. Wilson was the owner of the same and all the rents and profits thereof."

The complaint further alleges that subsequently R. J. Wilson executed a paper writing—whether a deed or will, the plaintiff is not advised—whereby he executed the power of appointment under the trusts in the deed of January 23, 1899, whereby he assigned and appointed for the plaintiff the McDuell land, and directed enough cash to be given her to make her share equal to the home place, which by the same instrument was assigned to her brother, and at the same time an equal division was directed to be made of all the stock, crop and provisions, money and notes, on hand at his death, between her brother and herself.

The complaint further avers that the two defendants, with the aid of her aunt, conspired to destroy and did destroy said paper writing, or power of appointment, executory of the trusts under the deed of January 23, 1899; that the defendants took possession of $10,000 in money (of which R. J. Wilson died in possession, and out of which he had directed enough be paid her to equalize her land with her brother) and all the lands, cropsthereon, and all the personal property left by her father, and refuse to assign to plaintiff her share as directed by the paper writing aforesaid; that the defendant Julia H., who is administratrix of R. J. Wilson, has refused to inventory much of the personalty as assets, the defendants claiming to hold them individually. The complaint asks that the trusts under the deed of January 23, 1909, be executed in accordance with the paper writing aforesaid, and that the defendants pay her so much of the $10,000 to make equality and half of the other personalty as therein provided.

The defendants demurred:

(1) Because the plaintiff's husband was not made a party. The court properly did not sustain that ground of demurrer. Revisal 1905, § 408 (1); Hart v. Cannon, 133 N. C. 10, 45 S. E. 351.

(2) Because Julia H. Wilson was not a party in her capacity as administratrix....