Winstead v. Farmer

• Citation: 137 S.E. 179,193 N.C. 405
• Decision Date: 23 March 1927
• Docket Number: 49.
• Parties: WINSTEAD et al. v. FARMER.
• Court: North Carolina Supreme Court

137 S.E. 179

193 N.C. 405

WINSTEAD et al. v. FARMER.

No. 49.

Supreme Court of North Carolina

March 23, 1927

Appeal from Superior Court, Wilson County; Barnhill, Judge.

Action by W. J. Winstead and others against Lula D. Farmer as executrix of the estate of Wiley W. Farmer and individually. From the judgment, defendant appeals. Modified and affirmed.

Beneficiaries releasing to living trustee legacies in his will for their benefit, were charged with knowledge of contents of will.

S. G Mewborn and Connor & Hill, all of Wilson, for appellant.

W. A Finch, M. S. Strickland, and Woodard & Rand, all of Wilson and Manning & Manning, of Raleigh, for appellees.

CLARKSON J.

(1) Adelphia Farmer died prior to November 27, 1899, leaving a last will and testament dated January 18, 1881, duly probated in Wilson county, N. C., in which she devised to Wiley W. Farmer a certain tract of land in said county, subject to a charge of $500, to be paid Mary F. Winstead upon her arrival at the age of 21 years. Adelphia Farmer was the grandmother, and Wiley W. Farmer the uncle, of Mary F. Winstead.

(2) Mary F. Winstead died in August, 1906, and left surviving J. C. Winstead, her husband (who since married Della Winstead), and the following children: (a) W. J. Winstead; (b) W. E. Winstead; (c) R. S. Winstead; (d) Gracie Winstead; (e) Bettie Winstead Alford--all of whom, with their respective wives and husband, and one unmarried, are plaintiffs in this action.

(3) Lula D. Farmer has duly qualified as executrix of the last will and testament of her husband, Wiley W. Farmer, and in her official and individual capacity is defendant in this action.

(4) John F. Bruton, commissioner, sold, on November 27, 1899, to Wiley W. Farmer, for $425, a tract of land in fee simple, purchased by him as the highest bidder at commissioners' sale. Deed for the said land was executed December 21, 1899, and duly recorded. This was a tract of land containing about 70 acres, and a partition proceeding was brought by Wiley W. Farmer, who owned two-fifths undivided interest, against the Joyners, who owned three-fifths interest. Wiley W. Farmer died in February, 1924, leaving the said tract of land to defendant, Lula D. Farmer. At the time Wiley W. Farmer purchased this land, Mary F. Winstead had reached the age of 21 years.

The Contentions.--Plaintiffs allege that the land was purchased by Wiley W. Farmer from John F. Bruton, commissioner, with the money left by Adelphia Farmer and held in trust by him for Mary F. Winstead and her heirs; that it was agreed between Mary F. Winstead and Wiley W. Farmer that title was to be taken in her name, but, through inadvertence or mistake, it was taken in Wiley W. Farmer's name; that immediately after the purchase she and her husband moved on the land and paid the tax; that in 1906 Mary F. Winstead died, and her husband, in 1909, moved off the land, and went to Elm City, N. C., to live; that Wiley W. Farmer repeatedly stated that he was holding the land for the use and benefit of Mary F. Winstead, and at her death reiterated the statement for her children, plaintiffs in this action. It is alleged that he had frequently promised to reconvey the land.

Defendant denied the allegations of plaintiffs, and alleged that, as to Mary F. Winstead living on the land with her husband, J. C. Winstead, it was because they had several children, and had no land; that it was the agreement that they should live there without rent, and pay the tax in lieu of Wiley W. Farmer paying interest on the $500; that they lived on the land until 1906, when Mary F. Winstead died, and her husband, in 1909, left it, and Wiley W. Farmer took immediate possession of the land, and received the rents until his death, and no demand was ever made on him for the land by Mary F. Winstead before her death or by the plaintiffs, her husband and heirs at law; that Wiley W. Farmer had been in the possession of the land some 15 years after Mary F. Winstead's death before this action was brought.

Wiley W. Farmer made his last will and testament on August 22, 1912. Among other things mentioned in item 3 he recites the fact of the $500 left by Adelphia Farmer, and says:

"It will be seen that my mother devised certain land to me and directed that I should pay to my niece, Mary Florence Farmer, who afterwards married Jesse C. Winstead, the sum of $500; during the life of the said Mary Florence Winstead, she and her husband occupied a tract of land owned by me for which I charged no rent, upon the agreement with her that the sum of $500 should not bear interest; the said Mary Florence Winstead and her husband occupied the tract of land until January 1, 1909, under the agreement aforesaid for this reason, in fixing the said date, the date from which interest on the sum of $500 is to be calculated, and it is my purpose that the sum of $500 herein directed to be paid to the issue of the said Mary Florence Winstead, shall be in full payment and satisfaction of any and all claims which she or any one claiming under her now has, or may have against my estate or against the land devised to me by my mother as aforesaid, and the acceptance by the issue of the said Mary Florence Winstead of the said sum, as well as of the further sum of one-third of the proceeds of the sale of the said farm shall be and shall be deemed a full release of my estate and of the tract of land devised to me by my mother therein of all claims which they or any one of them shall have against my estate."

In a codicil dated December 24, 1913, he recites that he has sold the land mentioned in item 3 of the will, and in lieu in item 1:

"I direct my executrix named in said will out of any money in her hands belonging to my estate, to pay to the issue living at my death of my deceased neice, Mary Florence Winstead, wife of Jesse C. Winstead, per stirpes and not per capita, the sum of $500, with interest thereon on at the rate of six per cent from January 1st, 1909, until paid, and if said sum, with interest does not amount to $1,000, then I direct my said executrix to add thereto a sufficient amount to make the amount paid to the said issue of my deceased niece, $1,000; the said sum to be accepted and received by the said issue in full settlement, satisfaction and discharge of any and all claims which they may have against me or my lands by reason of the matters and things set out in said item 3 of said will."

In a codicil dated June 10, 1916, he recites:

"Whereas, by item 1 of the said codicil, dated 24th day of December, 1913, I directed my executrix to pay to the issue living at my death of my deceased niece, Mary Florence Winstead, per stirpes and not per capita, a sum of money therein expressed; in any event not less than one thousand dollars, and Whereas, now some of the children of my niece, have arrived or are about to arrive at the age of 21 and have called upon me for money, and I have paid or contemplate paying them or some of them certain sums in lieu of their interests or the interests of their issue in said sum named in said item 1 of said codicil. Now, therefore, in the event that I shall pay to any child or children of my deceased niece any sum of money during my lifetime and shall take receipt for same, I direct that my executrix shall not pay to such child or to the issue of such child, or to such children or to the issue of such children, any share or shares in said sum, but as to such child or children or to the issue of such children, the legacy shall be deemed revoked, provided, however, he, she or they shall be considered in determining the number of shares into which the same shall be divided, and my executrix is directed to pay to such child or children or to the issue of such child or children to whom I have paid any sums during my lifetime, his, her or their share, as provided in item 1 of said codicil."

We have set forth the reference to the $500 in the will and codicils. The will and codicil of December 24, 1913, are especially material upon the plea of estoppel made by defendant. Three of the plaintiffs after the execution of the will and codicils--(1) W. E. Winstead on September 16, 1916, for $146.50; (2) W. J. Winstead, on August 8, 1917, for $151.50; (3) Bettie W. Alford, on October 23, 1920, for $182.54--signed, sealed, and delivered to Wiley W. Farmer the following paper writings, all duly witnessed, all similar to the W. E. Winstead, except the amounts:

"Received of W. W. Farmer, one hundred forty-six and 50/100 dollars in full payment of any sum due me as a child of Mary Florence Winstead, by the said W. W. Farmer, by virtue of the last will and testament of Adelphia Farmer, and in satisfaction of any interest that I may have in any legacy contained in the last will of the said W. W. Farmer. Witness my hand and seal this the 6th day of September, 1916.

W. E. Winstead. [ Seal.]

"Witness: E. A. Darden."

The record shows that the court below charged the jury correctly, and there are no exceptions to the charge:

"The only question presented by this appeal is the exception and assignment of error to the judgment rendered, and the refusal of the trial judge to sign the judgment tendered by the defendant and the controversy is as to the force and effect of the receipts and releases executed by the plaintiffs, who are the real parties in interest, set out in the defendant's answer and found by the jury to have been executed."

The following issue was answered by the jury, "Yes":

"Did Wiley W. Farmer receive title to the premises described in the complaint under deed dated December 21, 1899, recorded in Book 55, at page 338 in trust, for the use and benefit of Mary Florence Winstead, as alleged?"

It is admitted that J. C. Winstead, the husband of Mary F....