Tyson v. Walston

• Court: North Carolina Supreme Court
• Writing for the Court: DILLARD
• Citation: Tyson v. Walston, 83 N.C. 90 (N.C. 1880)
• Decision Date: 30 June 1880
• Parties: J. W. TYSON v. J. A. WALSTON, Adm'r, and others.

83 N.C. 90

J. W. TYSON

v.J. A. WALSTON, Adm'r, and others.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION, tried on appeal from a justice of the peace, at Spring Term, 1878, of PITT Superior Court, before Henry, J.

Jeptha Walston left a last will and testament wherein after devising and bequeathing lands and personal property to his two sons, Joseph A. Walston and John J. Walston, he devised and bequeathed his home tract of land, containing four hundred and forty acres, and all the residue of his estate, not given to others, to his three daughters, Martha, Amanda and Della, charging the personalty (within the residuary gift) with the debts of the testator, with a pecuniary legacy of five hundred dollars to a son of his wife by a former husband, and with a legacy of one thousand dollars to his wife. And among the clauses of the will material to the decision of the question presented on the appeal, are the following:

“I give and devise to my three daughters (above named) their heirs and assigns forever, the tract of land on which I now reside in Pitt county, containing four hundred and forty acres, more or less. The residue of my property and estate of every description after paying my debts, funeral expenses, and settling my estate, the bequest of five hundred dollars to my step-son, Charles Taylor, and one thousand dollars to my wife, as secured to her by a written agreement entered into between us before our intermarriage, I give and bequeath unto my said three daughters, their executors and administrators.

It is my will and desire, and I do hereby direct, that the land and other property and estate herein devised and bequeathed to my three daughters, be kept in common and not divided between them until the youngest one of them shall attain the age of twenty-one years; that until then, they may be permitted to reside on the land and be supported and educated out of the annual income which may arise from the sale of the surplus crops made on the land under the management and direction of their guardians hereinafter appointed, provided however, that in case either of my daughters should marry before the time arrives for the division to be made, she shall not be permitted to live on the land after such marriage, but shall be entitled to receive annually one-third of the income arising from the land, to be ascertained by deducting from the gross sales of surplus crops the expenses incurred in producing the crops, and the expenses incurred in the support and education of the unmarried daughters. And for the purpose of enabling the guardians to carry on the farm-property, I hereby authorize and empower them from time to time to purchase farming implements, teams, and such other things as may be necessary for that purpose, and to employ laborers by paying them wages in money or a portion of the crops as they, the guardians, may deem best for the interest of my daughters.”

The testator appointed his brother, W. Walston, and his son, J. J. Walston, executors of his will, and the same persons guardians of the person and property of his three daughters. Both of the executors are dead, (of whom J. J. Walston was the survivor,) and thereupon Joseph A. Walston was appointed administrator d. b. n. of Jeptha Walston, and B. W. Brown became administrator of J. J. Walston, and J. R. Thigpen qualified as guardian of Della, all of whom are parties defendant, the other two daughters, Martha and Amanda, having sold and assigned all their interest under the will to J. J. Walston, one of the guardians.

The claim of the plaintiff is for work and labor done on the lands devised to the three daughters and advances in money to J. J. Walston, and the account sued on is charged to J. J. Walston as executor of Jeptha Walston. And it is stated in the case of appeal that the services and money sought to be recovered were rendered and advanced when J. J. Walston was living on the land with his ward, Della, and after the death of his co-guardian, and after the purchase of the shares of the other two daughters.

The question presented for decision in the court below, and for review in this court on appeal, is on whom the liability rests for the plaintiff's claim? whether on the estate of Jeptha Walston, or on the...