Taylor v. Smith

• Decision Date: 19 March 1895
• Citation: 116 N.C. 531,21 S.E. 202
• Court: North Carolina Supreme Court
• Parties: TAYLOR . v. SMITH.

21 S.E. 202

116 N.C. 531

TAYLOR .

v.SMITH.

Supreme Court of North Carolina.

March 19, 1895.

Agreement between Joint Owners—Provision for Survivorship—Gift — Conflicting Findings — Construction of Contract — "Livino Heir."

1. A verbal agreement between two parties holding a note payable to them jointly, that upon the death of either without living issue it shall belong to the survivor, is valid.

2. Code, § 1326, abolishing survivorship in estates held in joint tenancy, does not prohibit contracts making the rights of the parties dependent on survivorship.

3. When the jury have found that a contract existed between two sisters, whereby the survivor should have the whole of certain property owned by them jointly, a second finding that one of the parties at a later date made a gift of her share in such joint property to the other is not inconsistent with the first.

4. In a contract between two sisters, providing that, should either of them die before the other without a "living heir." the survivor should become sole owner of a note held by them jointly, the words "living heir" should be construed to mean "issue."

Appeal from superior court, Greene county; Brown, Judge.

Action by G. W. Taylor, administrator, against Addie O. Smith. From a judgment for defendant, plaintiff appeals. Affirmed.

The material portions of the testimony were as follows: George M. Smith testified for the defendant: "I executed the note for seven hundred dollars." Said witness further testified: "I paid this note to Addie O. Smith, December 24, 1891. Paid fifty-six dollars in cash, and gave her a deed for a tract of land worth seven hundred dollars. She surrendered me the note. After the note was assigned to Cora and Addie Smith, I paid one-half the annual interest to each. After Cora died, which was on June 12, 1891, I paid the whole note and interest to said Addie, as before stated. She had possession of note, and surrendered it to me. I know Cora owned one-half of the note during herlife. Cora Smith married the plaintiff about eighteen months before she died. I paid Cora her part of the interest before she was married. I do not think I paid her any interest after she was married. I then paid the interest to Addie Smith." Deposition of Talitha Smith is offered in evidence, which is as follows: "Q. 1. What is your age, name, and residence? A. My name is Talitha Smith; am sixty-seven years old; and live in Falkland township, Pitt county, N. C. Q. 2. Is your health too feeble for you to attend court? A. It is. I have not been able to go out of the room for five or six months. I have rheumatism. Q. 3. How are you related to Cora L. Taylor, deceased, and Addie O. Smith and George M. Smith? A. They are all my children. Q. 4. Do you know anything about what note your daughter Cora Taylor owned before her death, and how she disposed of the same? If so, state all you know about it. A. She had a note against George M. Smith for three hundred and fifty dollars, if I remember correctly, I think her part was three hundred and fifty dollars. A short while before she was married, —say, about twelve months before her marriage, —she handed this note to her sister Addie, and told her to put it away and take care of it. At same time and place they agreed with each other that should either of them die before the other without a living heir, that the sur vivor should have the note, and that during the life of both of them they should collect the interest together in equal shares. At the time she handed note to Addie, she said, 'Keep it until I call on you for it, if I ever do and, if I never do, you keep it' This note was given to Cora and Addie jointly by the administrators of Bryant Smith, deceased, whose name is W. S. E. Smith, my son. They were both present when he handed them the note. I meant Cora L. and Addie O. Smith were both present This note was given them in settlement of their father's, Bryant Smith's, estate. Q. 5. Do you know the whole amount of the note in controversy? A. Yes; it was seven hundred dollars. Q. 6. Did you ever hear Mrs. Taylor speak of this transaction at any other time? A. I have. A short while before her death, she told me she wanted Addie to keep and have the note, and that she had told George she wanted Addie to have it. No one was present except Cora and myself at that time. (All the answer to the last question objected to as incompetent, because irrelevant, and because the husband of said Cora L. Smith was not consenting to the alleged transfer or alleged statement deposed to in that answer.)"

Issues: "(1) Did the said Cora Taylor, about twelve months before her marriage to plaintiff, deliver said note, described in the pleadings, to Addie O. Smith, upon a mutual agreement between herself and said Addie that the survivor should take the whole of said note, as alleged by defendant? Response of jury: Yes. (2) Did Cora Taylor, prior to her marriage about twelve months, make a gift of her interest in the note described in pleadings to said Addie O. Smith, as alleged by defendant? The jury responds: Yes. (3) If so, did said transaction take place prior to the engagement of marriage between George W. Taylor and said Cora? Response of jury: Yes."

J. B. Batchelor, for appellant.

Geo. M. Lindsay, for appellee.

AVERY, J. Two sisters, the plaintiff's intestate and the defendant, "agreed with each other that, should either of them die before the other without a living heir, the survivor should have" a...