Wilkie v. Wilkie

• Decision Date: 17 August 1982
• Docket Number: No. 8129SC1118,8129SC1118
• Court: North Carolina Court of Appeals
• Parties: Eula WILKIE v. Robert Harold WILKIE, Betty Fowler and Mildred McFalls.

Page 230

294 S.E.2d 230

58 N.C.App. 624

Eula WILKIE v. Robert Harold WILKIE, Betty Fowler and Mildred McFalls.

No. 8129SC1118.

Court of Appeals of North Carolina.

Aug. 17, 1982.

Redden, Redden & Redden by M. M. Redden, Hendersonville, for plaintiff-appellee.

Herbert L. Hyde, Asheville, for defendants-appellants.

BECTON, Judge.

By Assignments of Error Nos. 1, 2, 7, 8, 9, 10 and 12, defendants argue that the admission of plaintiff's testimony regarding transactions and communications with the decedent violated G.S. 8-51, the dead man's statute. G.S. 8-51 precludes an interested witness from testifying at trial about personal transactions or communications between the witness and a deceased person when either the witness or the person he is testifying against derives his interest or title from, through or under the deceased person.

In ruling on the admissibility of plaintiff's testimony concerning transactions and communications with decedent, the trial court examined the file and heard arguments of counsel. The trial court found that defendants had submitted interrogatories to plaintiff pursuant to Rule 33 of the North Carolina Rules of Civil Procedure; that plaintiff answered the interrogatories; and that these answers were filed by the defendants. The trial court further found:

2. ... That beginning with interrogatory No. 7, the questions propounded related, at least, in part to "personal transactions" with the deceased, C. D. Wilkie; and related specifically to subject matter of this lawsuit. That plaintiff answered the interrogatories, and the answers contained statements by the plaintiff, which in part, are "personal transactions" with the decedent, C. D. Wilkie. That there was no objection by the plaintiff to the interrogatories or any one of them; and that there was no objection by the defendants to the answer of any of the interrogatories.

The trial court concluded that the "filing and service of these interrogatories upon Mrs. Wilkie and her answers thereto constitute[d] a waiver" by defendants of the incompetency of plaintiff under G.S. 8-51 to the extent of the matters inquired about in the interrogatories.

Defendants argue in their brief that since they did not offer the answers to the interrogatories into evidence, the dead man's statute was not waived. We agree with the trial court that, under the prevailing view set forth in North Carolina cases, the defendants were not required to introduce the answers into evidence before a waiver would exist. In Hayes v. Ricard, 244 N.C. 313, 93 S.E.2d 540 (1956), the plaintiffs adversely examined the defendant to obtain evidence for use at trial as provided by the discovery statutes existing at that time. The Hayes Court concluded "that '[t]hat examination is a waiver of the protection afforded by G.S. 8-51 to the extent that either party may use it upon the trial.' " Id. at 324, 93 S.E.2d at 549. The Court further indicated that a waiver at one stage of the trial would continue throughout the proceedings. See Brandis, North Carolina Evidence § 75 (2nd Rev. Ed. 1982). The reasoning in Hayes would also apply to the filing of interrogatories and their answers.

A decision by this Court further supports our conclusion that defendants waived the dead man's statute by filing the pertinent interrogatories and answers. In Stone v. Homes, Inc., 37 N.C.App. 97, 102, 245 S.E.2d 801, 805, disc. review denied, 295 N.C. 653, 248 S.E.2d 257 (1978), we concluded that "waiver of an exception to incompetent evidence under G.S. 8-51 occurs when the objecting party first succeeds in eliciting the incompetent evidence." In the case before us the defendants succeeded in eliciting incompetent evidence under G.S. 8-51 after they served interrogatories upon plaintiff and filed the answers thereto. ¹ By so doing, defendants waived the protection afforded by G.S. 8-51.

Defendants next assign error to the trial court's denial of their motion for directed verdict. They contend that even assuming arguendo that the dead man's statute was waived and the plaintiff's testimony of her transactions and conversations with the decedent was admissible, the evidence still would not support the finding of a resulting trust in the property in plaintiff's favor. We disagree.

On a motion for a directed verdict, the trial court must consider whether the evidence presented is sufficient to go to the jury. In passing upon this motion, the evidence must be considered in the light most favorable to the non-movant. "That is, 'the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor.' (Citation omitted.)" Rappaport v. Days Inn, 296 N.C. 382, 384, 250 S.E.2d 245, 247 (1979).

The evidence in the case sub judice when viewed in the light most favorable to the plaintiff shows the following: Plaintiff and decedent were married on 5 August 1965. Both parties had children by prior marriages. In 1968 plaintiff and decedent discussed buying the property at issue from Robert Reese. Decedent told plaintiff that he did not have the money and she thereafter furnished $1,800 towards the purchase price of $4,000. Decedent furnished only $200. Plaintiff and decedent agreed that the deed would be made to both of them. They later moved onto the property and built a residence thereon. Plaintiff continues to live on the property. She testified that she put in excess of $7,000 in the land and improvements. At the time of plaintiff's marriage to decedent she had approximately $16,000 in cash. On 21 September 1978 decedent died intestate. After his death plaintiff saw the deed to the property for the first time. The deed had been recorded in March 1968 and had been placed in decedent's name alone. Plaintiff indicated that she had never been to the office of the attorney who allegedly drafted this deed.

In further support of her allegation that decedent intended the deed to be in his and plaintiff's names and that she is therefore entitled to a resulting trust in the property as the surviving tenant by the entirety, plaintiff introduced into evidence county tax listings and tax receipts mailed to both her and decedent which showed taxes were paid on the property at issue. Additionally, other witnesses testified that decedent had told them that the property belonged to him and plaintiff. One of these witnesses testified that decedent told him he was glad plaintiff had bought this property. C. F. Dockins, an accountant who had known decedent, testified that decedent came to him and indicated that plaintiff wanted Dockins to draft a statement showing her investment in the property.

We believe the foregoing evidence was sufficient for the jury to find a resulting trust in the property in plaintiff's favor. "Resulting trusts relate to the situation where equity will raise a trust by reason of the nature of a transaction which indicates that the parties would have intended a trust to be created although none was declared." Webster's Real Estate Law in North Carolina § 507 (Rev. Ed. 1981).

The classic example of a...