Roscoe v. John L. Roper Lumber Co.

Citation32 S.E. 389,124 N.C. 42
PartiesROSCOE v. JOHN L. ROPER LUMBER CO.
Decision Date28 February 1899
CourtUnited States State Supreme Court of North Carolina

Appeal from superior court, Gates county; Norwood, Judge.

Action by Jane E. Roscoe against the John L. Roper Lumber Company. From a judgment for defendant, plaintiff appeals. Reversed.

Plaintiff offered in evidence the following record from the Book of Wills in the office of the clerk of Gates superior court (page 418 et seq.), as follows (last will and testament of H E. Roscoe, deceased):

"I H. E. Roscoe, of the town of Oxford, county of Lafayette and state of Mississippi, being of sound mind, body, and understanding, do make and ordain this to be my last will and testament, revoking all other wills by me made. I give and bequeath to my beloved wife, Jane E. Roscoe, all my property,--personal, real, and mixed,--which I now have, or may hereafter acquire by purchase or otherwise. I hereby appoint my wife, Jane E. Roscoe, executrix of my last will, requiring that she make no bond or make any return whatever to the chancery court, but that she shall have entire control, without let or hindrance of the chancery court of Lafayette, and shall take possession of all my property, of whatever kind, and do with it just as she pleases, retaining or disposing of it as may be her pleasure to do. Given under my hand and seal this the thirteenth (13) day of January, one thousand eight hundred and eighty-two (1882). H. E. Roscoe. [Seal.] Witness: Silas Owens, Jr. A. T. Owens.

"State of Mississippi, Lafayette County. In the Chancery Court, in Vacation. Personally appeared before me, John F. Brown, clerk of the chancery court of the county and state aforesaid, Silas Owens, Jr., and A. T. Owens, subscribing witnesses to a certain instrument of writing purporting to be the last will and testament of H. E. Roscoe, late of said county, now deceased, bearing date the 13th day of January, A. D. 1882, who, being first duly sworn, depose and say that said H. E. Roscoe signed, sealed, and executed said instrument and testament in the presence of these deponents on the day of the date thereof; that said testator was then of sound, disposing mind and memory, and more than twenty-one years of age; and that these deponents subscribed said instrument as witnesses thereto at the instance and request and in the presence of said testator, and also in the presence of each other, on the day and year aforesaid. Silas Owens, Jr. A. T. Owens.

"Sworn to and subscribed before me this 11th day of March, A. D. 1885. [Seal.] J. F. Brown Clerk, by A. G. Smith, D. C.

"No. 2,120. In the Chancery Court of Lafayette County, Mississippi, in Vacation, March 11, 1885. H. E. Roscoe, Deceased, against Jane E. Roscoe, Ex'trx. In the Matter of H. E. Roscoe, Deceased. This day came on to be heard the matter of the last will and testament of H. E. Roscoe, deceased; and it appearing that Jane E. Roscoe was appointed executrix under said last will and testament, and it appearing that said last will and testament has been duly proven as required by law, it is therefore ordered that the same be admitted to probate, and that letters be issued to said executrix upon her taking the oath required by law. Whereupon the said executrix took the oath prescribed by the statute, and letters were issued. J. F. Brown, Clerk.

"State of Mississippi, Lafayette County. Chancery Court. I, Ben P. Gray, clerk of chancery court of Lafayette county, state of Mississippi, do hereby certify that the foregoing is a full, true, and perfect copy of the last will and testament of H. E. Roscoe, deceased, and of the judgment of said court ordering probate thereof, which said will and testament was regularly admitted to probate as such in this court on the 11th day of March, 1885, as said will and testament and said judgment appear of record in this office. Witness my hand and seal of said court at office in Oxford, state of Mississippi, this 8th day of February, 1897. Ben P. Gray, Clerk of Chancery Court of Lafayette Co., Miss. [Seal.]

"State of Mississippi, Lafayette County. Chancery Court. I, B. T. Kimbrough, judge of chancery court of Lafayette county, state of Mississippi, do hereby certify that the foregoing attestation of Ben P. Gray, clerk of said court, is in due form. This 8th day of February, 1897. B. T. Kimbrough, Judge of Chancery Court, Lafayette Co., Miss.

"State of Mississippi, Lafayette County. Chancery Court. I, Ben P. Gray, clerk of chancery court of Lafayette county, state of Mississippi, do hereby certify that the signature to foregoing certificate is the genuine signature of B. T. Kimbrough, judge of said court. Witness my hand and seal of said court at office in Oxford, Mississippi, this 8th day of February, 1897. Ben P. Gray, Clerk of Chancery Court, Lafayette Co., Miss. [Seal.]

"North Carolina, Gates County. In the Superior Court. It appearing to the satisfaction of the court, from the exemplification of the record hereinafter mentioned, that the last will and testament of H. E. Roscoe, deceased, a citizen of Lafayette county, and state of Mississippi, has been duly proved and allowed in the proper court of probate of said county and state according to the laws of said state, and it further appearing that the said H. E. Roscoe left property in the county of Gates and state of North Carolina, it is therefore ordered and adjudged that the exemplification of said will and of its probate in the proper court of the said county of Lafayette and state of Mississippi, which has been produced and exhibited here, duly certified and authenticated, be allowed, filed, and recorded in this court. This 18th day of February, 1897. W. T. Cross, Clerk Superior Court."

Defendant in apt time objected to this record, but it was admitted by the court.

W. M. Bond and S. G. Ryan, for appellant.

Pruden & Pruden, E. F. Aydlett, and L. L. Smith, for appellee.

MONTGOMERY J.

In her complaint the plaintiff alleges that she is the owner in common with the defendants of the lands described in the complaint, her alleged interest being one-half of the whole; and this action was commenced to have herself adjudged the owner of her one-half interest in common, and that the lands may be sold for a division by a commissioner appointed by the court. In their answer the defendants denied the claim of the plaintiff, and also pleaded the statute of limitations of 20 years adverse possession under known and visible lines and boundaries, and the 7-years statute under color and adverse possession. In the trial in the superior court, upon the conclusion of the plaintiff's evidence, the defendants moved to dismiss the action, under chapter 109, Acts 1897. The motion was allowed, and from the order the plaintiff appealed to this court.

In support of her title the plaintiff introduced a duly-certified copy of a record from the Book of Wills in the office of the clerk of the superior court of Gates county containing the will of H. E. Roscoe, who died in Lafayette county, Miss., and its probate, which will had been filed and recorded in the clerk's office of Gates county, under section 2156 of the Code, as amended by chapter 393 of the Laws of 1885. She also introduced a copy of the will...

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