{ "id": 8631387, "name": "DR. JOHN L. LISTER v. M. W. LISTER, Administrator, and MRS. GOLDIE LISTER MARKHAM, Administratrix of the Estate of E. W. LISTER, Deceased", "name_abbreviation": "Lister v. Lister", "decision_date": "1943-02-24", "docket_number": "", "first_page": "555", "last_page": "566", "citations": [ { "type": "official", "cite": "222 N.C. 555" } ], "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": "219 N. C., 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622823 ], "opinion_index": 0, "case_paths": [ "/nc/219/0299-01" ] }, { "cite": "217 N. C., 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614933 ], "opinion_index": 0, "case_paths": [ "/nc/217/0644-01" ] }, { "cite": "211 N. C., 114", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "91 N. C., 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690801 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/91/0286-01" ] }, { "cite": "41 S. E., 705", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "130 N. C., 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274265 ], "opinion_index": 0, "case_paths": [ "/nc/130/0575-01" ] }, { "cite": "219 N. C., 815", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626713 ], "opinion_index": 0, "case_paths": [ "/nc/219/0815-01" ] }, { "cite": "193 S. E., 151", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605155 ], "opinion_index": 0, "case_paths": [ "/nc/212/0225-01" ] }, { "cite": "18 S. E., 50", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "113 N. C., 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652346 ], "opinion_index": 0, "case_paths": [ "/nc/113/0090-01" ] }, { "cite": "220 N. C., 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11302671 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/220/0361-01" ] }, { "cite": "120 S. E., 328", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N. C., 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654253 ], "opinion_index": 0, "case_paths": [ "/nc/186/0565-01" ] }, { "cite": "18 S. E., 79", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "113 N. C., 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652212 ], "opinion_index": 0, "case_paths": [ "/nc/113/0042-01" ] }, { "cite": "16 S. E., 903", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "112 N. C., 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650463 ], "opinion_index": 0, "case_paths": [ "/nc/112/0083-01" ] }, { "cite": "95 N. C., 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272973 ], "opinion_index": 0, "case_paths": [ "/nc/95/0063-01" ] }, { "cite": "91 N. C., 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688785 ], "opinion_index": 0, "case_paths": [ "/nc/91/0226-01" ] }, { "cite": "64 N. C., 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682531 ], "opinion_index": 0, "case_paths": [ "/nc/64/0313-01" ] }, { "cite": "83 S. E., 474", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "167 N. C., 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272172 ], "opinion_index": 0, "case_paths": [ "/nc/167/0260-01" ] }, { "cite": "21 S. E., 39", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "116 N. C., 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654293 ], "opinion_index": 0, "case_paths": [ "/nc/116/0064-01" ] }, { "cite": "94 N. C., 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650892 ], "opinion_index": 0, "case_paths": [ "/nc/94/0274-01" ] }, { "cite": "86 N. C., 40", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "85 N. C., 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277281 ], "opinion_index": 0, "case_paths": [ "/nc/85/0166-01" ] } ], "analysis": { "cardinality": 999, "char_count": 28582, "ocr_confidence": 0.486, "pagerank": { "raw": 1.4471869353908153e-07, "percentile": 0.6543286886609991 }, "sha256": "9f9d9d24691265ed49e50bd2b9012f91a2b76549b16b76c8819d6f26de49356b", "simhash": "1:94ff9034cd613f48", "word_count": 4964 }, "last_updated": "2023-07-14T15:48:14.759571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DR. JOHN L. LISTER v. M. W. LISTER, Administrator, and MRS. GOLDIE LISTER MARKHAM, Administratrix of the Estate of E. W. LISTER, Deceased." ], "opinions": [ { "text": "Winborne, J.\nWhile appellants assign as, and stress for error many exceptions taken in the trial below, we deem the treatment of basic questions to be sufficient for correct determination of the points involved. These are accordant with the theory of the trial below, in which we find no prejudicial error.\n1. Where in the trial of this action plaintiff produces paper writings, in the form of negotiable notes purporting to be payable to him and to be signed by intestate of defendants, administrator and administratrix, upon which the action is based, and testifies to his possession of them since certain dates, even though such dates correspond with the purported dates of such paper writings, and identifies the purported signatures thereto to be in the handwriting of said intestate, are such paper writings admissible in evidence? Yes. See Pate v. Brown, 85 N. C., 166; Pugh v. Grant, 86 N. C., 40; Kiff v. Weaver, 94 N. C., 274; Johnson v. Gooch, 116 N. C., 64, 21 S. E., 39; Trust Co. v. Bank, 167 N. C., 260, 83 S. E., 474:\nHowever, defendants contend that such paper writings are inadmissible in that the admission of them in evidence contravenes the provisions of C. S., 1795, which, briefly stated, provides that upon the trial of an action a party or a person interested in the event shall not be examined as a witness in his own behalf against the administrator of a deceased person, concerning a personal transaction or communication between the witness and the deceased person.\nThis contention is untenable for these reasons: (1) This Court, in construing this statute, C. S., 1795 (formerly C.O.P., 343, the Code, 590, and Revisal, 1631, successively), has adopted, and applied in a long line of decisions the construction that while such party is incompetent to testify that he saw the deceased person actually sign the particular paper, he is competent to prove the handwriting of such deceased person. Peoples v. Maxwell, 64 N. C., 313; Rush v. Steed, 91 N. C., 226; Hussey v. Kirkman, 95 N. C., 63; Ferebee v. Pritchard, 112 N. C., 83, 16 S. E., 903; Sawyer v. Grandy, 113 N. C., 42, 18 S. E., 79; Haiterthwaite v. Davis, 186 N. C., 565, 120 S. E., 328. It was no doubt in deference to these decisions that no exception was taken to testimony of plaintiff. Moreover, after the notes were offered in evidence, M. W. Lister, called as witness for plaintiff, testified that be knew bis brother E. W. Lister\u2019s signature, that the signature on the notes is bis genuine signature, and that the writing in the notes is that of E. W. Lister.\nWhile the purported negotiable notes standing alone do not of themselves constitute evidence, yet accompanied as they are by competent evidence as to handwriting and signature of intestate of defendants, from which jury may infer that the notes are authentic and that they were executed by E. W. Lister, the party by whom they purport to be, they are admissible in evidence. After being identified by such evidence, which is not in conflict with provisions of C. S., 1795, the admission of the notes in evidence is not violative of such provisions.\n2. The second question relates to the correctness of the ruling of the court in refusing to grant defendants\u2019 motions, aptly made, for judgment as in case of nonsuit. C. S., 567.\nDefendants, in their brief filed in this Court, debating the exceptions to refusal to grant these motions, direct their attack upon the ruling only in so far as it relates to their pleas of the three-year, and the seven-year statutes of limitation, under C. S., 441, and C. S., 438, but say nothing, in this connection, with regard to their plea of the one-year statute, under C. S., 412. Thus it appears that the challenge to the ruling on the motions in so far as it is affected by the plea under C. S., 412, is abandoned by defendants. If, however, this were not the case, the evidence appearing in the record, and tending to show that plaintiff filed his claim with defendants within one year after their qualification, and that they admitted it, is sufficient to take the case to the jury with respect thereto. C. S., 412, in pertinent portion, provides : \u201cIf a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against the personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration, provided the letters are issued within ten years of the death of such person. If the claim upon which the cause of action is based is filed with the personal representative within the time above specified, and admitted by him, it is not necessary to bring an action upon such claim to prevent the bar . . .\u201d See Rodman v. Stillman, 220 N. C., 361, 17 S. E. (2d), 336, and cases cited. And the record discloses that the court, in charging the jury on the issues submitted as to the several statutes pleaded by defendants, in bar of the right of plaintiff to maintain this action, made the answer thereto to turn upon the facts the jury should find from the evidence, and by its greater weight, as to whether the claim of plaintiff filed with defendants as personal representatives of E. ~W. Lister, deceased, within one year after the issuing of letters of administration, was admitted by them. In this connection it is proper to note that plaintiff alleges in his complaint that the notes sued upon were duly presented to the defendants for payment within twelve months from the date of their qualification; that in answer thereto the defendants admit that \u201cplaintiff some time after the death of Dr. E. W. Lister made claim against the defendants upon the paper writings which he now alleges to he notes\u201d; that on the trial the plaintiff testified that he presented his \u201cclaim for those two notes just introduced in evidence\u201d to the administrators in August, 1934; that the defendant M. W. Lister, the administrator, as witness for the plaintiff, testified that his brother E. W. Lister died the latter part of April, 1934; and that \u201csome time in June\u201d the plaintiff \u201csent the papers to us, of course to file,\u201d and on cross-examination said, \u201cThis claim was mailed to me in June, 1934\u201d; and that there is no evidence to the contrary. Thus, patently, the court was correct in assuming that plaintiff had filed claim with the personal representatives within one year after the issuing of letters of administration, leaving open for the jury\u2019s determination the question as to whether the defendants, the administrators, had admitted the claim as filed. Such construction in the light of the pleadings and the evidence is in harmony with proper construction of the provisions of C. S., 412. And if the claim were admitted it would not be necessary to bring an action on such claim to prevent it being barred. Rodman v. Stillman, supra. On the other hand, if the claim had not been filed and admitted plaintiff could not maintain the action. Hence, as one note in suit matured on 19 April, 1933, and the other on 1 January, 1933, each less than three years prior to the date of death of E. \"W. Lister, an action on the notes was not then barred by the three-year statute of limitation, C. S., 441, and the filing of claim, and the admission of it, in accordance with the provisions of C. S., 412, would prevent the claim being barred. And any question as to whether the notes were or were not .under seal becomes immaterial in this phase of the case.\nMoreover, the provisions of C. S., 438 (2) (formerly 0. 0. P., section 32, Code, section 153, and Revisal, section 392, successively), as construed by this Court in the case of Redmond v. Pippen, 113 N. C., 90, 18 S. E., 50, applies to an action against a personal, and where necessary the real representatives, to compel the performance of some right of which the debt itself is the foundation. MacRae, J., writing for the Court, said: \u201cThis is the more reasonable, as the result of an action against the personal representative upon an ordinary obligation of the deceased, is simply to ascertain the amount of the debt and fix it in a judgment.\u201d Under this construction, C. S., 438 (2), is not applicable to case in hand.\n3. Tbe third question relates to tbe charge of tbe court that tbe burden of proof as to tbe fifth issue is upon tbe defendants to satisfy tbe jury on tbe evidence, and by its greater weight, that E. W. Lister did not adopt as bis own tbe word \u201cSeal\u201d appearing on tbe notes. Tbe charge is in keeping with tbe decisions of this Court in tbe cases of Allsbrook v. Walston, 212 N. C., 225, 193 S. E., 151, and Currin v. Currin, 219 N. C., 815, 15 S. E. (2d), 279. Furthermore, here tbe words, \u201c\"Witness my band and seal,\u201d appear in tbe body of tbe notes above tbe signature, and tbe notes contain all tbe evidence bearing on tbe subject.\n4. Tbe fourth question relates to those portions of tbe charge on tbe fourth issue wherein tbe court instructed tbe jury to tbe effect that as each of tbe notes in question bears tbe recital \u201cfor value received,\u201d there is a presumption that each was executed for a valuable consideration. This is in accord with tbe statute, C. S., 3004, which provides that \u201cevery negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.\u201d Upon this rule tbe court instructed tbe jury that \u201cunder all tbe evidence ... if you believe it and find tbe facts to be as all tbe evidence tends to show, you would answer that fourth issue Tes . . .\u201d Careful consideration of tbe evidence in tbe record fails to show that this instruction is not well founded.\n5. Tbe fifth question pertains to tbe exclusion of certain entries in tbe bandwriting of E. W. Lister, tbe intestate, in a book which be kept and which was found in bis room after bis death. Exceptions 11 and 13. Tbe entries are these:\n\u201c1932\n\u201cApril 19th, 1932\nDr. John L. Lister Paid\n700.00\non bis note 638.85\nI gave him my note as\na receipt for same.\n\u201cJuly 14, 1932\nPd. by check $250.00 Receipt given.\u201d\nPlaintiff\u2019s objection thereto is well taken (1) for that a personal representative cannot introduce declarations of tbe deceased unless they are a part of tbe same conversation or statements proven by tbe opposite party, Johnson v. Armfield, 130 N. C., 575, 41 S. E., 705; and (2) for that they were in tbe interest of tbe party making them \u2014 that is, \u201ctbe law does not allow a party to make evidence for bimself and those who claim to take benefit of such declarations under him.\u201d Austin v. King, 91 N. C., 286.\n6. The sixth question is as to the sufficiency of the issues submitted. Exceptions 17 to 28, both inclusive. Defendants tendered eleven issues, the first eight of which relate to plaintiff\u2019s alleged cause of action, and the last three to defendants\u2019 alleged counterclaim, all of which the court refused to submit.\nIssues submitted are sufficient when they present to the jury proper inquiries as to all determinative facts in dispute, and afford the parties opportunity to introduce all pertinent evidence and to apply it fairly. Hill v. Young, 211 N. C., 114, 6 S. E. (2d), 830, and cases cited. Also, Saieed v. Abeyounis, 217 N. C., 644, 9 S. E. (2d), 399; Oliver v. Oliver, 219 N. C., 299, 13 S. E. (2d), 549. When tested by this rule, the issues submitted in the present case meet all the requirements, in so far as the plaintiff\u2019s cause of action is concerned. However, issues' pertaining to defendants\u2019 counterclaim arise upon the pleadings, and these, tendered by defendants, were refused by the court, to wit:\n\u201c9. In what amount, if any, is plaintiff indebted to defendants by reason of the 1927 loan of $2,000 and the 1929 loan of $1,600 ?\n\u201c10. In what amounts, if any, is plaintiff indebted to defendants by reason of payments made by Dr. E. W. Lister to Zenas Pritchard ?\n\u201c11. In what amount, if any, is plaintiff indebted to defendants by reason of services of Dr. E. \"W. Lister as managing agent for plaintiff?\u201d\nIn this connection the record fails to show that plaintiff made a motion for judgment as in case of nonsuit, or that the court made any ruling as to defendants\u2019 counterclaim. Hence, the question arises as to whether there is any evidence in the record of sufficient probative force to support a verdict on either of the above issues numbered 9, 10 and 11. And this necessitates also consideration of exceptions to exclusion of certain evidence offered by defendants. Exceptions 14 and 15.\n9th Issue: As to indebtedness of plaintiff for loan or loans to which this issue relates, the case on appeal contains no evidence whatever tending to show any such, particular transactions.\n10th Issue: As to indebtedness of plaintiff for payments made by Dr. E. W. Lister to Zenas Pritchard, defendants proposed to introduce in evidence two checks in the handwriting of, and drawn by Dr. E. W. Lister on the First and Citizens National Bank of Elizabeth City, N. C., to order of Zenas Pritchard, the first dated 21 December, 1932, for $122.00, and the second dated 23 December, 1933, for $102.00, each bearing endorsement \u201cZenas Pritchard,\u201d the first being stamped \u201cPAID 12-21-32,\u201d and the second, \u201cPAID 12-27-,\u201d together with these entries on corresponding stubs, also in the handwriting of Dr. E. W. Lister. The first reads:\n\u201c$102.00\n20.00\n$122.00\nDec. 21, 1932.\nTo J. L. L. note Int. For_\u201d;\nand the second:\n\u201c102.00\nDec. 23, 1933.'\nTo Zenas Pritchard\nFor J. L. L. 1933 int.\u201d\nUpon objection, these checks and entries were excluded. Defendants except.\nManifestly, the entries on the check stubs are incompetent for the reasons assigned above in considering the eleventh and thirteenth exceptions. Johnson v. Armfield, supra; Austin v. King, supra. The checks, while payable to Zenas Pritchard, show nothing in themselves to indicate, or from which it may be inferred, that they were being drawn for the benefit, or in payment of debts of plaintiff, J. L. Lister. Without some earmark, other than self-serving declarations, to identify the checks as having been given for the benefit of plaintiff, they are immaterial and incompetent as evidence against him. But defendants contend that, in the light of the testimony of plaintiff that he gave his note to Dr. E. W. Lister for $1,100 and he \u201csigned it on the back\u201d and got the money from Zenas Pritchard for the note, interest on that amount for one year at the rate of six per centum per annum would be $102, the amount of one of the checks, and that this is some evidence from which the jury may infer that the check was in payment of interest due by plaintiff on his said note. This is speculative \u2014 and insufficient. And it is fair to state that plaintiff testified, without objection, that he paid the Pritchard note, \u201cmade all the payments of both principal and interest, but not direct to Mr. Pritchard.\u201d\n11th Issue: As to indebtedness of plaintiff on account of services of Dr. E. W. Lister as his managing agent, there is no evidence from which the jury could infer that anything he did in looking after farms of plaintiff was for or in expectation of pay, or how much such services as he rendered were worth. On the other hand, plaintiff testified, without objection, that \u201cDr, Elisha Lister looked after some of my farms for me in Pasquotank County sometimes. They were rented out to tenants and sometimes Dr. Elisba arranged for the management of those farms in my behalf. I did not pay Dr. Elisha Lister any money for these services and he never presented me a bill for anything-. That was a proposition between us. .We settled that together ourselves ... I don\u2019t know what he did about looking after the work going on on the farm during the year ... he had been looking after the farm during the growing of the crops and would tell me about it, and it was a pleasure for him to do that . . . My brother never charged me anything for looking after the farms. I never heard of there being any claim until after this suit was started.\u201d\nThus we find no error in the refusal of the court to submit the 9th, 10th and 11th issues tendered by defendants.\nOther exceptive assignments have been given due consideration. In the judgment below, we find\nNo error.", "type": "majority", "author": "Winborne, J." } ], "attorneys": [ "W. I. Halstead and Ballard S. Gay for plaintiff, appellee.", "J. Kenyon Wilson and 8am B. Underwood, Jr., for defendants, appellants." ], "corrections": "", "head_matter": "DR. JOHN L. LISTER v. M. W. LISTER, Administrator, and MRS. GOLDIE LISTER MARKHAM, Administratrix of the Estate of E. W. LISTER, Deceased.\n(Filed 24 February, 1943.)\n1. Evidence \u00a7 32\u2014\nWhile in the trial of an action, based upon a paper writing, against the personal representative of a decedent, the plaintiff, or other party interested in the event, is incompetent to testify that he saw the deceased person actually sign the particular paper, 0. S., 1795, he is competent to prove that the paper in question or the signature thereto is in the handwriting of the deceased.\n2. Evidence \u00a7 43a\u2014\nDeclarations, in the interest of the party mating them, are incompetent as evidence; the law does not allow a party to mate evidence for himself and those who claim under him. Chect stubs hel\u00e9 incompetent.\n3. Same\u2014\nDeclarations of a deceased person cannot be introduced in evidence by his personal representative, unless they are a part of the same conversation or statements proven by the opposite party.\n4. Limitation of Actions \u00a7\u00a7 2b, 2e, 2g, 10\u2014\nWhere, in an action against administrators, who qualified in May, 1934, on promissory notes, maturing in January, 1933, and April, 1933, and signed by the intestate, who died in April or May, 1934, upon a plea of the statutes of limitation, O. S., 412, 438 and 441, there being evidence tending to show that plaintiff filed his claims with the administrators within one year after their qualification and the claims were admitted, motions by defendants for nonsuit were properly denied. O'. S., 567.\n5. Seals \u00a7\u00a7 2, 3: Bills and Notes \u00a7 2c: Limitation of Actions \u00a7 16\u2014\nIn an action upon a promissory note, concluding with the words \u201cWitness my hand and seal\u201d and signed by the maker, with the word \u201cseal\u201d in parentheses after his name, the burden is on defendant to satisfy the jury by the greater weight of the evidence that the word \u201cseal\u201d so appearing wag not adopted by the maker.\n6. Bills and Notes \u00a7 25\u2014\nThere is a presumption that a note, bearing the recital \u201cfor value received,\u201d was executed for a valuable consideration; and O. S., 3004, provides that every negotiable instrument is deemed prima facie to have been issued for value.\n7. Trial \u00a7 37\u2014\nIssues submitted are sufficient when they present to the jury proper inquiries as to all determinative facts in dispute, and afford the parties opportunity to introduce all pertinent evidence and to apply it fairly.\nAppeal by defendants from Hamilton, Special Judge, at October, 1942, Regular Term, of PasquotaNK.\nCivil action instituted 18 May, 1942, to recover on certain promissory notes.\nThese facts appear to be uncontroverted: Dr. E. W. Lister, brother of plaintiff, and intestate of defendants, died in the latter part of April, or first of May, 1934. Defendant M. W. Lister, a brother, and defendant, Mrs. Goldie Lister Markham, a sister of Dr. E. W. Lister and of plaintiff, qualified as administrator and administratrix, respectively, of the estate of Dr. E. W. Lister, deceased, on 22 May, 1934.\nPlaintiff in his complaint alleges these facts, among others: \u201c2. That the said E. W. Lister ... on April 19th, 1932, executed and delivered to the plaintiff, Dr. J. L. Lister, his promissory note in words and figures as follows:\n\u201cElizabeth City, N. C.\n\u201c$750.00\n\u201cFor value received, on or before April 19, 1933, I promise to pay to the order of Dr. John L. Lister Seven Hundred and Fifty Dollars with interest from date at the rate of 6% per annum, payable annually.\n\u201cThis note is secured by Deed of Trust on ... of even date herewith. \u201cAs witness my hand and seal this the 19th day of April, 1932.\nE. W. Lister (Seal)\n\u201cWitness:\nThat on 14 July, 1932, he executed and delivered to the plaintiff, Dr. John L. Lister, his promissory note in words and figures as follows :\n\u201cElizabeth City, N. C.\n\u201c250.00\n\u201cFor value received, on or before January 1, 1933, I promise to pay to the order of Dr. John L. Lister Two Hundred and Fifty Dollars with interest from date at the rate of 6% per annum, payable annually.\n\u201cAs witness my hand and seal this the 14th day of July, 1932.\nE. W. Lister (Seal)\n\u201cWitness:.\u201d\nPlaintiff further alleges and on trial below offered evidence tending to show that said notes were duly presented to defendants, administrator and administratrix, for payment within twelve months from the date of their qualification as such administrator and administratrix, and that no intimation or suggestion from them \u201cwith respect to any contention about payment of same was made, and although payment thereof has been requested and demanded on numerous occasions, said defendants have failed to pay same.\u201d\nPlaintiff further alleges: That said notes are valid obligations against the estate of intestate, are long past due and unpaid, though there are sufficient assets belonging to the estate to pay all indebtedness against it, together with cost of administration; and that the defendants are indebted to him in the principal sum of each note with interest from date for which judgment is prayed.\nDefendants, in their answer, while admitting the death of E. W. Lister, and their qualification as administrator and administratrix of his estate, and that \u201cplaintiff sometime after the death of Dr. E. W. Lister made claim against these defendants upon the paper writings which he now alleges to be notes,\u201d deny all other material allegations of the complaint; and aver in substance: (1) That if E. W. Lister \u201csubscribed his name to any paper writing or paper writings such as purport to be copied in paragraph 2 of the complaint, such subscription or signing of his name was done without the intention on the part of the late E. W. Lister to adopt, as his own, the word 'Seal\u2019 appearing after his name, according to the copies set forth in the said paragraph of the two said paper writings\u201d; (2) that if E. W. Lister delivered \u201csuch paper writings\u201d to plaintiff, \u201csuch delivery was without consideration ... in that the said plaintiff was a brother of the late E. W. Lister and for a long number of years had been indebted to the said E. W. Lister for money borrowed, in various large and substantial sums, and that any money or other thing of value which may have passed from the plaintiff to the said E. W. Lister on or about 19 April, 1932, and on or about 14 July, 1932, did not represent and was not . . . any consideration for the said paper writings . . . but that any money or thing of value delivered to the said E. W. Lister by the said plaintiff . . . were . . . payments by the said plaintiff to the said E. \"W. Lister for and on account of indebtedness theretofore due and owing by said plaintiff to said E. W. Lister, and these defendants plead such failure of consideration in bar of the plaintiff\u2019s right to recover in this action\u201d; (3) that \u201csaid paper writings are not, and never were, in fact promissory notes and did not . . . represent any indebtedness from the late Dr. E. ~W. Lister, or his estate, to plaintiff, Dr. J. L. Lister, and were not given by the one or received by the other with any understanding that the sums of money therein mentioned were ever to be paid, but that on the contrary it was understood between them that such sums were never to be paid by Dr. E. W. Lister to Dr. J. L. Lister; that it was understood and agreed between them that said papers were merely receipts for money paid, or were written in the form of promissory notes in order to permit plaintiff to borrow money thereon, \u2014 Dr. E. W. Lister thereby lending his credit to said brother, or were executed solely for some other use to be made thereof by J. L. Lister, but always with the understanding that they evidenced no debt by E. W. Lister to J. L. Lister.\u201d\nAnd by way of further answer and defense and for counterclaim defendants aver and say: (1) That the paper writings declared on in the complaint are not \u201csealed instruments\u201d within the purview of section 437 of N. C. Consolidated Statutes, 1919, and that any cause of action thereon is barred by the three-year statute of limitation, which is pleaded in bar of any recovery thereon; (2) that summons in this action issued 18 May, 1942, more than one year after the issuance of letters of administration to defendants; that claims upon said notes were not duly filed with these defendants within one year of their qualification and the issuance of letters of administration to them, nor were said claims admitted by the defendants; that the personal assets have been exhausted in the payment of debts and defendants have in hand only such funds of the estate as are sufficient to pay certain parts of secured debts, and costs of administration of the estate, upon all of which defendants plead the one-year statute of limitation, C. S., 412, in bar of any recovery by plaintiff; (3) that more than seven years have elapsed since the date of defendants\u2019 qualification, and the making of advertisement for creditors of E. W. Lister to present their claims as required by law, in May, 1934, in manner specified, and the seven-year statute of limitation, C. S., 438, is pleaded in bar of any recovery by plaintiff; and (4) that plaintiff is indebted to estate of E. \"W\". Lister (a) in sum of $2,000 with interest as of 1 January, 1933; (b) in the sum of $224, with interest, by reason of accommodation endorsements as alleged which he had to pay, that is, $122 in December, 1932, and $102 in December, 1933; and (a) in the sum of $500, with interest from 1 January, 1934, for services rendered in collecting certain rents; for all of which judgment is prayed by defendants.\nIn reply, plaintiff denies the material averments of defendants as set forth in their further defense and counterclaim, and alleges, and on trial below offered evidence tending to show: That his claim was duly filed according to law and accepted and received by and had the approval of defendants; that, after their qualification defendants listed his claim as an item of indebtedness against the estate in inheritance tax report filed by them in 1934, and claimed and were allowed, as a deduction in settlement of inheritance tax, the amount of principal and interest as stated therein, being the same amount for which claim was presented by plaintiff to defendants, that is, the sum of $1,132.92, principal and interest then due; and that in October, 1939, defendants, with joinder of plaintiff, instituted an action in the Superior Court of Pasquotank County for the purpose of selling land to create assets with which to pay the indebtedness of the estate, including plaintiff\u2019s claim, which proceeding was pending until May Term, 1942, of said Superior Court, when defendants took a voluntary nonsuit therein, whereupon plaintiff alleges that he instituted this action \u201cas a continuing process or action to recover his claim.\u201d Plaintiff further pleads the three-year statute of limitation, C. S., 441, in bar of defendants\u2019 right to recover on each of the several causes of action set out in the counterclaim.\nSuch other evidence as was adduced in the trial court, as is necessary to proper consideration of decisive questions, will be referred to in the opinion hereinafter.\nThese issues were submitted to and answered by the jury as follows:\n\u201c1. Is the claim against defendants\u2019 intestate\u2019s estate barred by the seven-year statute of limitations? Answer: No.\n\u201c2. Is the claim against defendants\u2019 intestate\u2019s estate barred by the three-year statute of limitations? Answer: No.\n\u201c3. Is the claim against defendants\u2019 intestate\u2019s estate barred by the one-year statute of limitations ? Answer: No.\n\u201c4. Did the defendants\u2019 intestate, E. ~W. Lister, execute and deliver to plaintiff for valuable consideration the notes in question and made the basis of the claim for the plaintiff? Answer: Yes.\n\u201c5. If so, did the defendants\u2019 intestate, E. W. Lister, adopt as his own the seal appearing on the note opposite his signature at the time of the execution of the note? Answer: Yes.\n\u201c6. What amount, if any, is plaintiff entitled to recover of defendant? Answer: $750 with interest. $250.00 with interest.\u201d\nFrom judgment thereon in favor of plaintiff, defendants appeal to Supreme Court and assign error.\nW. I. Halstead and Ballard S. Gay for plaintiff, appellee.\nJ. Kenyon Wilson and 8am B. Underwood, Jr., for defendants, appellants." }, "file_name": "0555-01", "first_page_order": 599, "last_page_order": 610 }