Whitehurst v. Gotwalt

Citation127 S.E. 582
Decision Date29 April 1925
Docket Number(No. 13.)
PartiesWHITEHURST et al. v. GOTWALT et al.
CourtUnited States State Supreme Court of North Carolina

127 S.E. 582
(189 N.C. 577)

WHITEHURST et al.
v.
GOTWALT et al.

(No. 13.)

Supreme Court of North Carolina.

April 29, 1925.


[127 S.E. 583]

Appeal from Superior Court, Pasquotank County; Devin, Judge.

Petition for partition by Mary Whitehurst and others against Minerva Bradford Gotwalt and others. From an order declaring and adjusting interests of the parties, petitioners and certain defendants appeal. Affirmed.

Thompson & Wilson and McMullan & Le Roy, all of Elizabeth City, for appellants.

Ehringhaus & Hall, of Elizabeth City, for appellees.

STACY, C. J. The case was heard on the evidence submitted and facts agreed, with the stipulation that the court might find further facts from the evidence in the case, if necessary, to a final determination of the rights of the parties. A jury trial was expressly waived.

On the hearing, the interest and rights of the respective parties were properly made to depend, first upon the validity, and, second, if valid, upon the rightful interpretation of the following clause in the will of D. B. Bradford:

"I do hereby and herein instruct and demand of my executrix, that if any attempt is made on the part of any of the beneficiaries herein named, to defeat, nullify, or contest in law or otherwise, the disposition or division of my property as herein made by me, that those so endeavoring to defeat, nullify or contest my wishes as herein expressed, shall not be entitled to the part I have intended for them, and shall only receive the sum of $10 each, and that part or portion of my estate herein set apart for them, shall revert to the other legatees or beneficiaries as may stand firmly by my wishes as herein expressed, and defend the distribution and disposal herein made by me of my property."

The locus in quo was devised by the testator to the petitioners and some of the respondents as tenants in common. We deem it unnecessary to set out the precise interest of each, as it would serve no useful purpose, under the view we take of the case.

There was a caveat filed to the will of D. B. Bradford, in which D. B. Fearing, J. B. Fearing, and J. B. Griggs each joined. Up on the issue of devisavit vel non, raised thereby, the will was sustained. 1S3 N. C. 6. His honor finds as a fact that the caveat was filed without probable cause, and that therefore all the interests of the caveators in the lands sought to be partitioned were forfeited under the above clause in the testator's will.

It was also found by the court below that the petitioner, Mary Whitehurst...

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