Whetstine v. Wilson

• Decision Date: 09 December 1889
• Court: North Carolina Supreme Court
• Parties: Whetstine v. Wilson.

10 S.E. 471

(104 N.C. 385)

Whetstine

v.Wilson.

Supreme Court of North Carolina.

Dec. 9, 1889.)

Contract to Make Will—Limitations or Actions.

1. An agreement by intestate that his son-in-law should have certain land if he and his wife would live on his place and take care of him is in effect a contract to devise the land, on breach of which the son-in-law may recover the reasonable value of his services.

2. A nonsuit within 12 months in a previous action begun within the statutory period, by plaintiff and his wife, jointly, for their services in such case, will, under Code N. C. § 166, prevent the bar of the statute of limitations; the wife not being a necessary party, and both actions being for-substantially the same cause.

Appeal from superior court, Burke county; R. F. Armfield, Judge.

Action by J. L. Whetstine against J. F. Wilson, administrator of the estate of S. C. Wilson, to recover for services rendered defendant's intestate in his life-time. Judgment of nonsuit was entered, and plaintiff appeals.

I. T. Avery, for appellant. S. J. Erwin, for appellee.

Merrimon, C. j. This action was brought in the court of a justice of the peace to recover the value of work done by the plaintiff for the intestate of the defendant in his life-time, " by hauling and chopping wood, and making fires, and waiting on S. C. Wilson [the intestate] in his last sickness, and for feeding his stock for the space of three years, to the amount of two hundred dollars." The defendant denied such indebtedness, pleaded the statute of limitations, and counter-claim. The plaintiff recovered, and the defendant appealed to the superior court. The following is so much of the case settled on appeal as need be reported: The plaintiff sued for services rendered the defendant's intestate in cutting and hauling wood, taking care of his stock, and waiting upon him for the three years preceding his death, in June, 1885. It was admitted that the plaintiff was a son-in-law of said S. C. Wilson; that said S. C. Wilson died in June, 1885, leaving eight children, of whom the wife of the plaintiff was one; that J.F.Wilson was appointed his administrator on the 26th day of August, 1887; and that soon after his appointment a suit was brought by the plaintiff and his wife, E. A. Whetstine, for services rendered by the plaintiff and plaintiff's wife; and that said action terminated by a judgment of nonsuit on the 5th day of March, 1888, and that the present action was begun on the 21st of September, 1888. E. A. Whetstine, wife of the plaintiff, was introduced as a witness, and testified that she was the wife of the plaintiff, and a daughter and heir of S. C. Wilson; that in 1880 she and her husband were living in McDowell county; that her father came to see them, and told them that if they would come to his place, in Burke county, and would live on it, and take care of him, he should have all of his land on the west sides of Paddy's creek; that the plaintiff and witness did go to his place and take care of him, wait on him, and cut and haul his wood, and nurse him in his last sickness; that he took sick in November, 1884, andgot some better in the month of February, 1885, but finally died in June, 1885; that said services were worth $100 a year; that plaintiff and witness had been in possession of the land on the west side of Paddy's creek, as a tenant of S.C.Wilson, from the time of their coming to Burke county up to the death of Wilson, and had paid rent therefor; that they were in possession of the said land now, and paid rent therefor. The defendant, upon this testimony, insisted that the plaintiff's action was barred by the statute of limitations, and...