Vick v. Winslow

• Decision Date: 26 February 1936
• Docket Number: 109.
• Citation: 183 S.E. 750,209 N.C. 540
• Parties: VICK et al. v. WINSLOW et al.
• Court: North Carolina Supreme Court

183 S.E. 750

209 N.C. 540

VICK et al. v. WINSLOW et al.

No. 109.

Supreme Court of North Carolina

February 26, 1936

Appeal from Superior Court, Edgecombe County; Moore, Special Judge.

Action by Annie E. Vick and others against Margaret W. Winslow and others. From a judgment as of nonsuit, plaintiffs appeal.

Reversed.

H. H Phiips, of Tarboro, for appellants.

George M. Fountain and Henry C. Bourne, both of Tarboro, for appellees.

SCHENCK Justice.

This is an action brought under C.S. § 1743 by the plaintiffs against the defendants, who it is alleged claim an estate or interest in the real estate described in the complaint adverse to the plaintiffs for the purpose of determining such adverse claim wherein the plaintiffs and defendants claim from a common source, namely, J. B. White.

The plaintiffs introduced in evidence the will of J. B. White which was admitted to probate on May 30, 1891, and devises the land in controversy to his wife, Charlotte White, for her lifetime and to T. H. Cherry after the death of his wife to hold in trust for the use and benefit of his daughter, Mary Vick, during her life, and after her death "to such child or children as my said daughter may have living at the time of her death, or may have issue born of their bodies, such issue to stand in the place of and take such share as his or her parent would have taken had such parent been living at the time of the death of my said daughter." Miss Annie Vick, one of the plaintiffs, testified that her mother was the Mary Vick mentioned in the will of J. B. White and that the children of the said Mary Vick were herself, Kate Tickle, Emma Vick Dixon, Ben Vick and James R. Vick, making five in all, all being plaintiffs in this action, and that her mother had only three other children, all of whom died in infancy; that J. B. White was her grandfather and was dead, and that Mary Vick, her mother, died on March 2, 1910, and that Charlotte White, widow of J. B. White, died on April 22, 1898, and that Thomas H. Cherry named in the will of J. B. White as trustee and executor has been dead for more than 16 years. This evidence makes out a prima facie record title in the plaintiffs.

The plaintiffs further introduced in evidence (1) a decree dated May 7, 1892, in the case of Thomas H. Cherry, executor of J. B. White, against Charlotte White, Calvin Savage and wife, Bettie, Rebecca Savage and Lafayette Savage, confirming a sale made by Thomas H. Cherry, as commissioner to sell the land in controversy, to M. L. Woolard, and directing him upon the payment of the purchase money to apply the same to the charges of administration and the debts of the estate of J. B. White; (2) a deed for said land from Thomas H. Cherry, commissioner, made pursuant to said decree, to M. L. Woolard, dated May 10, 1892; (3) a quitclaim deed from Ida M. Adams, guardian of Jacquelin Woolard and Soloman Woolard to J. H. Vick, for the land in controversy, dated March 28, 1901; (4) a deed of trust with power of sale from J. H. Vick to E. C. Winslow, trustee for C.J. Winslow, dated April 1, 1916; and (5) a foreclosure deed from E. C. Winslow, trustee, to Margaret W. Winslow, dated March 24, 1926.

The plaintiffs rested their case and the defendants moved for a judgment as of nonsuit, which motion was...