Thomas v. Lines

• Decision Date: 30 June 1880
• Citation: 83 N.C. 191
• Court: North Carolina Supreme Court
• Parties: R. W. THOMAS, Exr, v. ANNA LINES and others.

83 N.C. 191

R. W. THOMAS, Exr,

v.ANNA LINES and others.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION for construction of a will, tried at January Special Term, 1880, of DAVIDSON Superior Court, before Schenck. J.

The defendants appealed from the judgment below.

No counsel for plaintiff.

Messrs. J. M. Clement and J. M. McCorkle, for defendants .

SMITH, C. J.

The object of the action instituted by the plaintiff, executor of Charles M. Lines, deceased, against the defendants, his legatees and devisees, is to obtain an authoritative construction of certain provisions of his will in order to the proper discharge of its trusts. The testator died in June, 1877, having in April preceding, made his will in due form to pass his estate, the material facts of which relating to the subject matter in controversy, are as follows:

1. “I give unto my beloved wife Anna Lines, all the household and kitchen furniture, with all the horses, cattle, sheep and hogs, my wagon, carriage and all the harness, the plows and all farming implements, with all the growing crops on the farm, and all the grain and provisions on hand at the time of my death; also one-third of my entire interest in my capital invested in the firm of C. M. & G. Lines, (except my interest in the buildings and machinery used and occupied as store and shoe manufactory) to have and to hold as her own property in her own right. I also give unto my beloved wife Anna Lines, during her natural life, the use of the dwelling house and lot where I now live, (except so much as is occupied for store and shoe manufactory) and also the use of the Dodson farm, with all of its minerals, whim, gold mill and fixtures, during her natural life.

I also give unto Anna Coltrain, daughter of Alice M. Coltrain, one hundred dollars; and to Mahala Marshall fifty dollars, if she should be living with us at the time of my death. The above bequests to be taken out of my capital invested in the firm of C. M. & G. Lines; the residue of my capital invested in the firm of C. M. & G. Lines, after paying my individual debts and funeral and burying expenses, I give one-third to my daughter Harriet G. Harris, one-third to the children of my deceased son Charles L. Lines, one-third to the daughter of my deceased son Royal J. Lines.

I also give to the daughter of my deceased son Royal J. Lines, the twenty-four acre lot bought of L. L. Thomas, in the year 1865 or 1866, also my half interest in the house owned by brother George and myself.

If Henderson Coltrain should pay my executor two hundred and fifty dollars, including what I may be owing him at the time of my death, in one year after my death, I wish my executor to give him a deed for the house and lot where he now lives.

At the death of my beloved wife Anna Lines, I desire and will that the Dodson farm be sold and equally divided between the children of my deceased sons, Charles L. and Royal J. Lines. All the residue of my property, whether personal or real, I give unto my daughter Harriet G. Harris, subject to the use of the dwelling house and lot to my beloved wife Anna Lines, during her natural life.”

The facts explanatory of the will, admitted or found by the judge with consent of parties instead of a jury are these: The partnership of C. M. & G. Lines, consisting of the testator C. M. Lines, who contributed to the capital stock $4,089.10, Geo. Lines, who contributed $3,916.18, Harriet G. Harris, who contributed $1,068.97, and M. R. Tyler, who contributed $701.57, was formed and commenced business the beginning of the year 1874, under written articles, in which it was agreed that each member may draw from the common fund only for necessary family expenses, unless with the consent of the others; that an annual inventory of the effects shall be taken and no profits distributed until the debts are paid and the original sums paid in restored to the respective partners; and that each shall share equally in the profit and loss.

The moneys arising from sales were received by the three members first above named, (the defendant H. J. Harris acting for his wife Harriet G. Harris,) each of whom kept a cash book and entered therein the several sums received and paid out in conducting the business.

After the testator's death, his cash book was balanced by said H. J. Harris as of June preceding, and showed the testator's indebtedness to the firm to be $1,851.25.

There are also balances in different sums against the two survivors on their respective cash books, and besides these, there are accounts against the partners for goods and merchandise on the books of the firm. There has never been an adjustment of partnership matters, nor any distribution of profits.

The business of the firm was the manufacture and sale of shoes in one house and general merchandise in the other.

In one of the houses was an iron safe in which were two locked drawers, the key opening one of which was kept by the testator, and the key of the other by the agent, H. J. Harris. In the drawer kept by the testator was found, after his death, in money the sum of $1,851.25, and at his house about $50. The testator commonly placed his own individual money in the drawer and deposited therein about $45 about two months prior to his death in an envelope. The moneys of the firm collected by H. J. Harris were kept in the drawer of which he had the key, and those collected by George Lines in his pocket. The several cash books were open to the inspection of all the members, and the firm owed no debts.

There was no express agreement that the testator nor any other member should withdraw any of the partnership assets, nor were any withdrawn by either of them. The sum found in the testator's drawer belonged to the firm.

Besides the personal the firm owned real estate in the town of Thomasville, known as the “store” and the “shoe manufactory” with the machinery and fixtures used with the latter.

The questions propounded by the executor and arising out of the contentions in the answers are these:

1. Does the legatee and devisee Anna Lines take one-third part of the testator's entire interest in the partnership property, the accumulations as well as the original capital put in, except as reserved in the will, or only one-third of the latter sum?

2. Are the legacies of $100 to Anna Coltrain and of $50 to Mahala Marshall to be taken out of the partnership property before the said Anna Lines' share is withdrawn, or out of the remaining two-thirds?

3. What property is embraced in the gift of “the residue of my (his) capital invested in the firm of C. M. & G. Lines, after paying my (his) individual debts, and funeral and burying expenses,” and is the money found in the drawer a part of the capital?

4. Does the crop growing on the Dodson farm at the time of the testator's death belong to the said Anna, the devisee of...