{
  "id": 11271995,
  "name": "PH\u0152BY FULWOOD et al. v. JAMES B. FULWOOD et al.",
  "name_abbreviation": "Fulwood v. Fulwood",
  "decision_date": "1913-03-26",
  "docket_number": "",
  "first_page": "601",
  "last_page": "603",
  "citations": [
    {
      "type": "official",
      "cite": "161 N.C. 601"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "159 N. C., 76",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "62 N. C., 42",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "154 N. C., 353",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T14:55:28.078438+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "PH\u0152BY FULWOOD et al. v. JAMES B. FULWOOD et al."
    ],
    "opinions": [
      {
        "text": "AlleN, J.\nThe description of the land devised to the defendant as \u201cthe homestead tract\u201d presented the case of a latent ambiguity, as it was uncertain what land was intended to be included under that designation, after it appeared that the 200-acre tract and the first, second, and third tracts described in the petition were adjoining tracts, and that the lands were acquired under different descriptions and at different times. Sherrod v. Battle, 154 N. C., 353. It was then permissible to introduce extrinsic evidence to fit the description, and for that purpose the declarations of the testator at the time of making the will and at other times, and his manner of dealing with the land, as by listing for taxation as one tract, were competent evidence. Kincaid v. Lowe, 62 N. C., 42; McLeod v. Jones, 159 N. C., 76.\nThe map is not sent up as a part of the record, and we cannot see that there was error in its exclusion. If, as may be inferred, the ruling of the court was because the surveyor had not followed the order under which he was acting, and had marked on the map his conclusions, his Honor properly refused to admit it as evidence. The other questions asked the surveyor are either as to irrelevant matters or the relevancy of the evidence offered does not appear to us.\nThe deeds introduced showed that the lands were conveyed to Benjamin Eulwood at different times and by different descriptions, and all the evidence was to the effect that the buildings were on the 200-acre tract.\nWhen a witness is asked, \u201cIs there a branch separating the 200-acre tract which you surveyed and Tract No. 1, which you surveyed?\u201d \u201cWhat separates Tract No. 3 from the 200-acre tract?\u201d \u201cWhat, if anything, in the nature of a natural boundary divides these two tracts from each other?\u201d without other statement as to what would be the testimony of the witness, and as to its materiality, it is impossible for us to say there is prejudicial error.\nThe other exceptions require no discussion. The whole controversy was one of fact, which has been determined by a jury, and we find no error upon the trial.\nNo error.",
        "type": "majority",
        "author": "AlleN, J."
      }
    ],
    "attorneys": [
      "(7. Ed. Taylor for plaintiffs.",
      "Oranmer & Davis and Robert Ruarle for defendant."
    ],
    "corrections": "",
    "head_matter": "PH\u0152BY FULWOOD et al. v. JAMES B. FULWOOD et al.\n(Filed 26 March, 1913.)\n1. Wills \u2014 Devises \u2014 Latent Ambiguity \u2014 Extrinsic Evidence \u2014 Declarations of Testator.\nA devise of the testator\u2019s \u201chomestead tract\u201d of land, when it appears that the buildings, outhouses, etc., where he had resided were on a tract containing 200 acres, but that he had acquired other adjoining tracts, from different persons at different times, presents a case of latent ambiguity, admitting extrinsic evidence to fit the description, and in this case, for that purpose, it was competent to show testator\u2019s declarations respecting it at the time of making the will, and at other times, his manner of dealing with the lands, etc.\n2. Appeal and Error \u2014 Maps\u2014Evidence Excluded \u2014 Materiality.\nWhere a map to the lands in controversy has not been sent up with the record, its exclusion by the court below will not be held for error, for the appellate court cannot see its relevancy; but in any event its exclusion in this case was proper if it was because the surveyor had marked his conclusion instead of following the direction of the court in making it.\n3. Wills \u2014 Devises \u2014 Latent Ambiguity \u2014 Evidence Excluded \u2014 Unanswered .Question \u2014 Appeal and Error.\nWhere a devise of lands, by its description, causes a latent ambiguity so as to admit of extrinsic evidence of its location or extent, the refusal of the trial court to allow witnesses to, answer questions as to its boundary or location, without statement as to what the answers would be, will not be held for error.\nAppeal by plaintiffs from Bragcm, J., at September Special Term, 1912, of BruNswick.\nThis is a proceeding for the partition of five tracts of land between the heirs of Benjamin Fulwood.\nIt was admitted at the trial that the said Fulwood acquired a 200-acre tract of land in 1875, which is not embraced in this proceeding; that he acquired the first and second tracts described'in the petition in 1881, and the third tract in said petition in 1882, and the fourth and fifth tracts at some other time.\nThe first, second, and third of said tracts adjoin the 200-acre tract, on which was the home, outhouses, etc.\nTie said Benjamin Fulwood left a will, in which he devised \u201cthe homestead tract of land\u201d to the defendant James B. Ful-wood, subject to the life estate of the widow of Benjamin Ful-wood.\nThe petitioners contended that \u201cthe homestead tract\u201d included the 200-acre tract and no more, and the defendant contended that it included the 200-acre tract and the first, second, and third tracts described in the petition.\nIt was admitted that the plaintiffs and defendant were tenants in common of the fourth and fifth tracts.\nThere was a verdict in favor of the defendant, and the petitioners appealed from the judgment rendered thereon.\n(7. Ed. Taylor for plaintiffs.\nOranmer & Davis and Robert Ruarle for defendant."
  },
  "file_name": "0601-01",
  "first_page_order": 645,
  "last_page_order": 647
}