{ "id": 8575723, "name": "SYLVIA ANNE COLLINS SCHOOLFIELD and husband, JAMES NORMAN SCHOOLFIELD, Petitioners v. WANDA LOUISE COLLINS (single); JOHN W. COLLINS and wife, MYRTLE COLLINS; NASH R. COLLINS and wife, ANN COLLINS; STEVE C. COLLINS and wife, FREDA SINK COLLINS; ALICE COLLINS MAYS and husband, GARLAND D. MAYS; DORA LUCILLE COLLINS (single); HAZEL COLLINS THOMPSON and husband, WADE THOMPSON; FLEET M. COLLINS and wife, CAROLYN COLLINS; and RAYMOND COLLINS and wife, JUANITA COLLINS, Respondents", "name_abbreviation": "Schoolfield v. Collins", "decision_date": "1972-06-16", "docket_number": "No. 80", "first_page": "604", "last_page": "618", "citations": [ { "type": "official", "cite": "281 N.C. 604" } ], "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": "182 S.E. 2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": -1 }, { "cite": "12 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547592 ], "year": 1971, "opinion_index": -1, "case_paths": [ "/nc-app/12/0106-01" ] }, { "cite": "83 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "240 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609953 ], "year": 1954, "pin_cites": [ { "page": "714" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0709-01" ] }, { "cite": "143 S.W. 117", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1912, "opinion_index": 0 }, { "cite": "102 Ark. 30", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1353996 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/ark/102/0030-01" ] }, { "cite": "95 S.E. 579", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1918, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "175 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658890 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nc/175/0283-01" ] }, { "cite": "162 S.E. 2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "274 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559690 ], "year": 1968, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0203-01" ] }, { "cite": "145 A. 2d 434", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "439" } ], "opinion_index": 0 }, { "cite": "218 Md. 108", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 1955396 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/md/218/0108-01" ] }, { "cite": "97 S.E. 2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "245 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618500, 8618303 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/245/0669-02", "/nc/245/0669-01" ] }, { "cite": "87 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "267" } ], "opinion_index": 0 }, { "cite": "242 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611775 ], "year": 1955, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0206-01" ] }, { "cite": "181 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565893 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0123-01" ] }, { "cite": "239 F. 2d 169", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 14944 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/f2d/239/0169-01" ] }, { "cite": "11 S.E. 2d 460", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621731 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0507-01" ] }, { "cite": "187 S.E. 2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572863 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0531-01" ] }, { "cite": "186 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] }, { "cite": "186 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] }, { "cite": "185 S.E. 2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571018 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0251-01" ] }, { "cite": "180 S.E. 2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] } ], "analysis": { "cardinality": 1072, "char_count": 30989, "ocr_confidence": 0.531, "pagerank": { "raw": 6.07227105505796e-07, "percentile": 0.9552454602565632 }, "sha256": "d0b77164ad90a154ca333ecc55f37a478d67756ca8ca97be0cfa98b14efa8c8a", "simhash": "1:2961cc961464b627", "word_count": 5108 }, "last_updated": "2023-07-14T21:53:41.611741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SYLVIA ANNE COLLINS SCHOOLFIELD and husband, JAMES NORMAN SCHOOLFIELD, Petitioners v. WANDA LOUISE COLLINS (single); JOHN W. COLLINS and wife, MYRTLE COLLINS; NASH R. COLLINS and wife, ANN COLLINS; STEVE C. COLLINS and wife, FREDA SINK COLLINS; ALICE COLLINS MAYS and husband, GARLAND D. MAYS; DORA LUCILLE COLLINS (single); HAZEL COLLINS THOMPSON and husband, WADE THOMPSON; FLEET M. COLLINS and wife, CAROLYN COLLINS; and RAYMOND COLLINS and wife, JUANITA COLLINS, Respondents" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nRule 56, G.S. 1A-1, which became effective on January 1, 1970, has been considered in Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971); Harrison Associates v. State Ports Authority, 280 N.C. 251, 185 S.E. 2d 793 (1972); Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E. 2d 897 (1972); Blades v. City of Raleigh, 280 N.C. 531, 187 S.E. 2d 35 (1972). The general rules applicable to summary judgment under Eule 56 as laid down in Kessing are approved and applied in the later cases. In each of these cases, summary judgment was held to be proper under the circumstances of the particular case.\nThe Court of Appeals held that respondent\u2019s answers to the interrogatories failed \u201cto disclose competent evidence of facts showing that there is a genuine issue for trial\u201d; that the \u201canswers to the interrogatories reveal that no genuine issue as to a material fact exists\u201d; and that \u201cupon the facts established petitioner was entitled to judgment as a matter of law.\u201d The opinion does not set forth what facts the court considered established or the reasons for its conclusion that petitioners were entitled to judgment as a matter of law.\nAs noted in our preliminary statement, respondent made a part of her answer a copy of the purchase contract of May 26, 1958, in which Cone Mills Corporation was designated as \u201cSeller\u201d and \u201cAlma C. Collins (Widow) and son, Eobert W. Collins,\u201d were designated \u201cPurchaser.\u201d She alleged that Eobert W. Collins died on December 21, 1962. She admitted that Cone Mills Corporation had executed the deed dated January 14, 1963, which, in terms, conveyed an undivided one-half interest in the subject property to Alma C. Collins (widow) and an undivided one-half interest to Louise G. Collins, Wanda Louise Collins and Sylvia Anne Collins. She also admitted that Louise G. Collins had executed a quitclaim deed dated January 14, 1963, which, in terms, conveyed her entire interest in the subject property to Wanda Louise Collins and Sylvia Anne Collins. (Note: Eespondent\u2019s petition for certiorari, which is verified by respondent, asserts (1) that \u201cthe mortgage life insurance on the life of Eobert Collins paid the balance due on the land contract\u201d and (2) that Louise G. Collins was the estranged wife of Eobert W. Collins.)\nUpon the admitted facts stated in the preceding paragraph, nothing else appearing, feme petitioner and respondent Wanda Louise Collins, as heirs of Eobert W. Collins, would own an undivided one-half interest in the subject property and summary judgment in their favor would be correct. Any genuine issue as to a material fact must relate to facts alleged as the basis for respondent\u2019s asserted further answers and defenses.\nUnder Rule 56(c) the absence or presence of a genuine factual issue may be shown by \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.\" (Our italics.) While the object of the last two sentences of Rule 56(e) is to pierce general allegations in the non-movant\u2019s pleadings, Rule 56(e) does not deny that a properly verified pleading which meets all the requirements for affidavits may effectively \u201cset forth specific facts showing that there is a genuine issue for trial.\u201d\nIn her pleading, respondent alleged specific facts within her personal knowledge. Her pleading was verified in the manner prescribed by Rule 11(b), sworn to and subscribed before a notary public. An affidavit is \u201c [a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath.\u201d Black\u2019s Law Dictionary, 80 (Rev. 4th ed. 1968); Ogburn v. Sterchi Brothers Stores, Inc., 218 N.C. 507, 11 S.E. 2d 460 (1940). Respondent\u2019s pleading meets all of these requirements; and, in respect of the specific facts stated therein, is an affidavit. \u201c[T]here is nothing in the rules which precludes the judge from considering a verified answer as an affidavit in the cause.\u201d Fletcher v. Norfolk Newspapers, 239 F. 2d 169 (4th Cir. 1956). \u201cTo the extent that a verified pleading meets [the requirements of Rule 56 (e) ] then it may properly be considered as equivalent to a supporting or opposing affidavit, as the case may be.\u201d 6 Moore\u2019s Federal Practice, par. 56.11 [3], at 2176 (2d ed. 1965).\nWe consider first respondent\u2019s allegation that \u201c[i]t was initially and always the agreement among respondent Dora Lucille Collins and Alma C. Collins and Robert W. Collins, that the interest of Robert W. Collins in said property was that only of a trustee for Alma C. Collins and the respondent Dora Lucille Collins.\u201d As to whether this allegation, if supported by competent evidence, would defeat petitioners\u2019 claim, see Bryant v. Kelly, 279 N.C. 123, 181 S.E. 2d 438 (1971). In her answer, respondent asserted she had knowledge of the alleged agreement. In her answers to interrogatories, she asserted that three named persons had knowledge of statements made to them by Alma C. Collins which tended to support respondent\u2019s said general allegation. Testimony as to statements made by Alma would be incompetent as hearsay and G.S. 8-51 would preclude respondent from testifying to such personal transaction with Robert. In short, respondent\u2019s answers to the interrogatories fail to show the existence of competent evidence to support her general allegations in reference to the alleged parol trust.\nIndependently of the alleged parol trust agreement, respondent alleges that she and Alma together \u201cfurnished all of the consideration for the down payment and for all of the monthly payments, including mortgage insurance premiums, until the property was paid for in full.\u201d Answering interrogatories pertinent to this allegation, respondent asserted that she personally \u201cprovided approximately one hundred dollars toward the down payment\u201d for the subject property. She asserted that she observed Alma take funds which she (Alma) had received from the Social Security Administration and funds which were given her by respondent \u201cwhen she went to the Cone Mills office to make the down payment\u201d on the subject property. Respondent\u2019s contribution of approximately $100.00 toward the down payment, with no obligation to make further payments of any kind, is insufficient to establish in favor of respondent any ascertainable trust interest in the subject property based on pro tanto payment of the purchase price. Rhodes v. Raxter, 242 N.C. 206, 208, 87 S.E. 2d 265, 267 (1955).\nAlternatively, respondent asserts ownership of the subject property as beneficiary under Alma\u2019s will. This contention presupposes that Alma became sole owner because of contributions she made toward the purchase thereof.\nWith reference to payments subsequent to the down payment, respondent asserted that she \u201cobserved Alma Collins each month take funds derived from her social security check to make the monthly payments on the land contract and send this money by different individuals to the Cone Mills Plant.\u201d Although she asserted that \u201creceipts for the monthly payments state that they were received of Alma Collins,\u201d no receipts were produced and identified. Garland C. Mays was identified as a person to whom \u201cAlma Collins on a number of occasions gave money ... to take to the Cone Mills Proximity Plant to make the monthly payments on the land contract.\u201d No affidavit of Garland Mays was presented. Respondent did not identify any other individual to whom Alma gave money to be taken to Cone Mills Corporation to make the monthly payments on the purchase contract.\nCone Mills Corporation acknowledged receipt of the down payment of $310.00 from the \u201cPurchaser.\u201d Alma and Robert became equally obligated for the payment of the balance of $5,890.00 plus interest, taxes and insurance premiums. Respondent\u2019s assertions, although competent, were insufficient to show what amounts, if any, were paid to Cone Mills Corporation by Alma. When Robert died, the unpaid balance was paid from the insurance on his life.\nAbsent affidavits disclosing competent evidence of the existence of the express parol trust alleged by respondent, respondent\u2019s assertions were not sufficient to establish that Robert held the legal title to an undivided one-half interest in the subject property as trustee for Alma. With reference to resulting trusts, see Waddell v. Carson, 245 N.C. 669, 97 S.E. 2d 222 (1957), and cases cited; also, Bryant v. Kelly, supra.\nEven so, for the reasons stated below, the court erred in granting petitioners\u2019 motion for summary judugment. The facts asserted by respondent in her verified pleading and in her answers to interrogatories which, for present purposes, must be accepted as true, include those narrated below.\nOn April 4, 1959, Robert, Alma and respondent executed the contract quoted in full in our preliminary statement. This contract provides for the disposition of the subject property upon the death of the three persons having an interest therein. One provision states: \u201cI[n] case of death of Lucille Dora Collins before the death of Alma C. Collins, her interest in the above mentioned property shall go to Robert W. Collins.\u201d (Our italics.) Robert W. Collins died December 21, 1962. The contract further provides: \u201cIn case of death of Robert W. Collins before the death of Lucille Dora Collins Ms interest in the above mentioned property shall go to Lucille Dora Collins.\u201d (Our italics.) The contract also provides: \u201cIf the death of Mrs. Alma C. Collins should occur before Lucille Dora Collins, her interest in the above mentioned property shall go to Lucille Dora Collins.\u201d (Our italics.)\nIn May, 1958, respondent was completely disabled and confined to a wheel chair. She had been disabled since about 1950 and was receiving social security benefits as a dependent child of her father who died in 1956. Alma, her mother, also was receiving social security benefits. The amounts which Alma sent to Cone Mills Corporation in payment of monthly installments for the subject property were derived from Alma\u2019s social security benefits. Respondent contributed her social security benefits to pay for household expenses of the family. Robert Collins helped buy some groceries and small household items which constituted his contribution to the operation of the household on Westside Drive during the period from May, 1958, until he became disabled. Robert Collins\u2019s two children, Wanda and Sylvia, resided in the household.\nRespondent was in possession of the subject property on May 26, 1958, and since then has been in continuous actual possession of the property. She shared the possession of the property with her mother, Alma C. Collins, until her death on March 24, 1963. Robert W. Collins lived there from May 26, 1958, until his death on December 21,1962.\nThe affidavit of Henry N. Patterson, Jr., states that on June 5, 1970, he examined records in the Guilford County Department of Social Services pertinent to the present proceeding; that \u201c[t]hese records contain a signed admission by Robert W. Collins that he was purchasing the property which is the subject of this proceeding along with his mother (Alma Collins) and his sister (Dora Lucille Collins)\u201d; and that these records had been subpoenaed for production in evidence. However, it does not appear that these records were produced for consideration by Judge Johnston. They are not in the record before us and are not necessary to decision on this appeal.\nRespondent\u2019s contention that she is the beneficiary of a trust created- by the contract of April 4, 1959, is supported by our decisions. The contract is a contract to devise even though it is not expressly so termed.\n\u201cAn agreement that a third-party beneficiary shall have land at the death of the promisor implies his promise to devise or convey the property so as to effectuate the contract between the promisor and the promisee. Ledingham v. Bayless, 218 Md. 108, 145 A. 2d 434, and the authorities cited therein at 116, 145 A. 2d at 439.\u201d Wells v. Dickens, 274 N.C. 203, 211, 162 S.E. 2d 552, 557 (1968).\nIn the cited Maryland case of Ledingham v. Bayless, this statement appears: \u201cThe authorities make it plain that if there is a contractual obligation under which property is to pass at the death of the promisor, a contract to bequeath or devise will be implied, although there is no express undertaking by the promisor to execute a will. A promise that the promisee shall receive the property, or that it shall be his at the death of the promisor, is sufficient and it is not necessary that the means by which title is to pass shall be spelled out. Page [Wills, Lifetime Edition], Sec. 1710; 94 C.J.S. Wills \u00a7\u00a7 111, 112, pp. 863, 865-866.\u201d Decisions cited in support of this statement include Stockard v. Warren, 175 N.C. 283, 95 S.E. 579 (1918), in which this Court declared a trust was created when the landowner promised his nephew that if he would come and take care of the farm and stock, at the death of the landowner and his wife, \u201call the stock and 200 acres of land on home place shall be yours to have and hold forever in fee-simple.\u201d\nAn annotation following Naylor v. Shelton, 102 Ark. 30, 143 S.W. 117, Ann. Cas. 1914A 394 (1912), contains this statement: \u201c[W]hile a court of chancery is without power to compel the execution of a will, and therefore the specific execution of an agreement to make a will cannot be enforced, yet if the contract is sufficiently proved and appears to have been binding on the decedent, and the usual conditions relating to specific performance have been complied with, then equity will specifically enforce it by seizing the property which is the subject matter of the agreement, and fastening a trust on it in favor of the person to whom the decedent agreed to give it by his will.\u201d Ann. Cas. 1914A at 399. This statement is quoted with approval in Stockard v. Warren, supra at 285, 95 S.E. at 580, and in Clark v. Butts, 240 N.C. 709, 714, 83 S.E. 2d 885, 889 (1954).\nSpecific facts set forth by respondent, with special emphasis on the contract of April 4, 1959, are sufficient to defeat petitioners\u2019 motion for summary judgment. These specific facts have not been controverted affirmatively by reply, affidavits or otherwise. Whether respondent\u2019s pleading be deemed an affirmative defense or a counterclaim not denominated as such, no responsive pleading was required and respondent\u2019s allegations of specific facts are to be taken as denied by petitioners. Rule 8(d). Such denial is sufficient to raise issues of fact to be determined at trial.\nRespondent\u2019s appeal also presents the question whether the court erred in denying her motions for a jury trial.\nThe original petition was filed October 15,1969. An amendment thereto was filed December 18, 1969. Respondent\u2019s answer was filed January 13, 1970. It contained no demand for a jury trial. On February 18, 1970, respondent filed a one-sentence \u201cDemand for Jury Trial.\u201d On March 13, 1970, respondent filed a \u201cMotion for Jury Trial,\u201d wherein respondent requested the trial court in its discretion to order a jury trial under Rule 39(b). On March 19, 1970, Judge Crissman, in the exercise of his discretion, denied this motion.\nThe new Rules of Civil Procedure went into effect on January 1, 1970. Chapter 803, Session Laws of 1969. Under prior North Carolina law, a request for jury trial was not required. G.S. 1-172 (Recompiled 1953) provided, \u201cAn issue of fact must be tried by a jury, unless a trial by jury is waived or a reference ordered.\u201d G.S. 1-184 (Recompiled 1953) provided that the means for waiver of jury trial were default or consent. However, Rule 38(d) of the new Rules provides that \u201cthe failure of a party to serve a demand as required by this rule . . . constitutes a waiver by him of trial by jury.\u201d\nRule 38(b) provides, \u201cAny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue . . . .\u201d\nSection 10 of Chapter 954, Session Laws of 1967, provided: \u201cThis Act shall be in full force and effect on and after July 1, 1969, and shall apply to actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date.\u201d (Our italics.) Chapter 803 of the Session Laws of 1969 repeated this provision in its entirety, except that the effective date was changed to January 1, 1970. The clear intent of the General Assembly was to apply the new Rules from the effective date to all civil cases, and not to permit the confusion which would be attendant upon trying to apply different procedures to cases begun before and to cases begun after the effective date.\nThe denial of respondent\u2019s belated demand for a jury trial was within the discretion of Judge Crissman. No abuse of discretion or error of law is involved.\nNo constitutional question is presented. Petitioners and respondent are equally denied a jury trial. The last pleading was filed on January 13, 1970. Ten days from that date both parties were precluded from demanding a jury trial. Rules 38(b) and (d).\nThe foregoing leads to this conclusion: The decision of the Court of Appeals is reversed. The cause is remanded to that court with direction to vacate the summary judgment and to remand the cause to the Superior Court for trial in accordance with Rule 52(a) (1).\nReversed and remanded.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Turner, Rollins & Rollins, by Elizabeth O. Rollins, for petitioner appellees.", "Smith & Patterson, by Henry N. Patterson, Jr., for respondent appellant." ], "corrections": "", "head_matter": "SYLVIA ANNE COLLINS SCHOOLFIELD and husband, JAMES NORMAN SCHOOLFIELD, Petitioners v. WANDA LOUISE COLLINS (single); JOHN W. COLLINS and wife, MYRTLE COLLINS; NASH R. COLLINS and wife, ANN COLLINS; STEVE C. COLLINS and wife, FREDA SINK COLLINS; ALICE COLLINS MAYS and husband, GARLAND D. MAYS; DORA LUCILLE COLLINS (single); HAZEL COLLINS THOMPSON and husband, WADE THOMPSON; FLEET M. COLLINS and wife, CAROLYN COLLINS; and RAYMOND COLLINS and wife, JUANITA COLLINS, Respondents\nNo. 80\n(Filed 16 June 1972)\n1. Evidence \u00a7 28.5; Rules of Civil Procedure \u00a7 56\u2014 affidavit defined\nAn affidavit is a written or printed declaration or statement of facts which was made voluntarily and confirmed by the oath or affirmation of the party making it before an officer having authority to administer such oath.\n2. Rules of Civil Procedure \u00a7 56\u2014 motion for summary judgment \u2014 verified pleading \u2014 consideration as affidavit\nA properly verified pleading which meets all the requirements for affidavits may he considered as an affidavit in support of or in opposition to a motion for summary judgment.\n3. Evidence \u00a7\u00a7 11, 33\u2014 parol trust \u2014 hearsay \u2014 dead man\u2019s statute\nTestimony as to statements made by respondent\u2019s mother, now deceased, is hearsay and therefore incompetent to show an alleged parol agreement that respondent\u2019s brother would hold title to real property in trust for respondent and her mother, and respondent is precluded by G.S. 8-51 from testifying to such personal transaction with her brother, who is also deceased.\n4. Trusts \u00a7 13\u2014 resulting trust \u2014 pro tanto payment of purchase price\nRespondent\u2019s contribution of approximately $100.00 toward the down payment of $310.00 on a house and lot, with no obligation to make further payments of any kind, was insufficient to establish in favor of respondent any ascertainable trust interest in the house and lot based on pro tanto payment of the purchase price.\n5. Trusts \u00a7 13\u2014 resulting trust \u2014 insufficiency of assertions\nWhere respondent\u2019s assertions were insufficient to show what amounts, if any, were paid by respondent\u2019s mother to the seller of property conveyed to respondent\u2019s mother and brother, such assertions were insufficient to establish a resulting trust in favor of respondent\u2019s mother in the one-half undivided interest in the property to which respondent\u2019s brother held legal title.\n6. Wills \u00a7 2\u2014 contract to devise \u2014 trust in favor of promisee\nA written contract executed by respondent, her mother and her brother, whereby real property in which the three parties had an interest was to go to respondent upon the prior death of her mother and brother was a contract to devise, and, upon the prior death of respondent\u2019s brother without devising his interest in the property to respondent, the court will fasten a trust on such interest in favor of respondent.\n7. Wills \u00a7 2\u2014 implied promise to devise\nAn agreement that a third party beneficiary shall have land at the death of the promisor implies his promise to devise or convey the property so as to effectuate the contract between the promisor and the promisee.\n8. Rules of Civil Procedure \u00a7 38\u2014 proceeding commenced prior to new Rules \u2014 last pleading after new Rules \u2014 failure to demand jury trial in apt time\nWhere a proceeding was commenced prior to the effective date of the new Rules of Civil Procedure, but the last pleading was filed on 13 January 1970 after the new Rules had become effective, both parties were precluded from demanding a jury trial ten days after the last pleading was filed, and the denial of respondent\u2019s belated demand for a jury trial filed on 18 February 1970 was within the discretion of the trial judge. G.S. 1A-1, Rules 38(b) and (d).\nON certiorari granted on petition of respondent Dora Lucille Collins to review decision of the Court of Appeals affirming judgment entered by Johnston, J., at June 1, 1970 Civil Session of Guilford Superior Court, docketed and argued in the Supreme Court as No. 144 at Fall Term 1971.\nPetitioners instituted this special proceeding on October 15, 1969, for the partition sale of a house and lot at 1218 Westside Drive, Greensboro, N. C., referred to hereafter as the subject property.\nThe petition and the answer of respondent Dora Lucille Collins, who is referred to hereafter as respondent, constitute the pleadings. None of the other persons named as respondents filed an answer or other pleading. Guilford County was permitted to intervene solely to assert its lien for unpaid taxes.\nAlma C. Collins, a widow, died in Guilford County on March 24, 1963, survived by eight children, namely, respondents John W. Collins) Nash R. Collins, Steve C. Collins, Alice Collins Mays, Dora Lucille Collins, Hazel Collins Thompson, Fleet M. Collins and Raymond Collins. She was survived also by petitioner Sylvia Anne Collins Schoolfield and respondent Wanda Louise Collins, who are children of Robert W. Collins, a deceased son of Alma C. Collins.\nPetitioners alleged that Alma C. Collins died intestate; that Sylvia Anne Collins Schoolfield and Wanda Louise Collins each owned a 5/18th undivided interest in the subject property; and that each of the surviving children of Alma C. Collins owned a l/18th undivided interest therein. Respondent denied these allegations.\nPetitioners alleged that Cone Mills Corporation, by warranty deed dated January 14, 1963, conveyed an undivided one-half interest in the subject property to Alma C. Collins (widow) and an undivided one-half interest therein to Louise G. Collins, Wanda Louise Collins and Sylvia Anne Collins; and that, by a quitclaim deed dated January 14, 1963, Louise G. Collins conveyed her entire interest in the subject property to Wanda Louise Collins and Sylvia Anne Collins.\nRespondent admitted that Cone Mills Corporation signed the \u201cpaper writing\u201d referred to by petitioners but \u201cspecifically denied that said paper writing constitutes a valid conveyance of said property to the persons named in that paper writing, because then, as now, the legal and beneficial interest to the entirety of said property was vested in the answering respondent, Dora Lucille Collins.\u201d Respondent admitted that Lucille G. Collins signed the \u201cquitclaim deed\u201d referred to by petitioners but \u201cspecifically denied that said paper writing conveyed any interest in this property whatever.\u201d\nAfter answering petitioners\u2019 allegations, respondent alleged as further answers and defenses the matters set forth below.\nIn her \u201cFirst Further Answer and Defense\u201d respondent alleged the following: She and Alma purchased the property, furnishing all consideration (down payment, monthly payments, and mortgage insurance premiums). She was not named in the contract of sale, dated May 26, 1958, \u201cfor the reason that at the time of its execution she was an invalid confined to the home and could not appear with the other parties before a notary public at the Cone Mills office.\u201d Robert W. Collins, through whom feme petitioner claims, was named in the contract \u201cfor the sole purpose of obtaining mortgage life insurance on the contract, since Alma C. Collins was at that time un-insurable.\u201d A copy of the contract of sale was attached to the answer. Robert, Alma and respondent agreed from the beginning that Robert was to hold the property only as \u201ca trustee for Alma C. Collins and the respondent.\u201d Alma died on March 24, 1963, leaving a will, dated February 8, 1959, probated January 5, 1970, leaving the contested property to respondent. A copy of the will was attached to the answer. On April 4, 1959, Robert, Alma and respondent entered into a written contract whereby the property was to go to respondent upon the death of Alma and Robert. A copy of this contract was attached to the answer. Respondent was in possession of the property on May 26, 1958, and has been ever since. Alma was also in possession until her death. Robert was also in possession, \u201cwith the express permission\u201d of Alma and respondent, until his death on December 21, 1962. Respondent received no notice of any efforts by anyone to interfere with her possession until the commencement of this proceeding on October 15,1969.\nIn the succeeding further answers and defenses, respondent alleged: (1) In respect of the subject property, Robert was the trustee of a resulting trust in favor of respondent and Alma; (2) respondent, as sole devisee under her will, became the owner of the undivided one-half interest of Alma; (3) feme petitioner and Wanda Louise Collins hold legal title to the subject property in constructive trust for respondent by virtue of the contract of April 4, 1959, entered into by Alma, Robert and respondent; (4) the claim of petitioners is barred by the statute of limitations on account of respondent\u2019s adverse possession of the subject property.\nThe purchase contract of May 26, 1958, designated Cone Mills Corporation as \u201cSeller\u201d and \u201cAlma C. Collins (Widow) and son, Robert W. Collins,\u201d as \u201cPurchaser.\u201d It provides that, as purchase price for the subject property, the \u201cPurchaser\u201d agrees to pay the principal sum of $6,200.00, consisting of a down payment of $310.00 and monthly payments1 of $52.43; and that the necessary portion of each installment payment shall be applied by the seller to the payment of interest, insurance premiums and ad valorem taxes.\nThe will of Alma C. Collins provides in part: \u201cI want all my household good[s] to go to Lucille Collins and my house to go to Lucille Collins at my Death .... \u201d\nThe contract of April 4, 1959, is quoted in full below.\nTo Whom It May Concern :\nRe: Alma C. Collins and Robert W. Collins \u25a0\u2014 One house located at 1213 Westside Drive Greensboro, North Carolina\nIf the death of Mrs. Alma C. Collins should occur before Lucille Dora Collins, her interest in the above mentioned property shall go to Lucille Dora Collins. I [n] case of death of Lucille Dora Collins before the death of Alma C. Collins her interest in the above mentioned property shall go to Robert W. Collins. In case of death of Robert W. Collins before the death of Lucille Dora Collins his interest in the above mentioned property shall go to Lucille Dora Collins. In case of death of Alma C. Collins before Lucille Dora Collins all personal belongs [sic] shall go to Lucille Dora Collins.\nGiven this the 4th day of April under our hands and seals.\nRobert W. Collins (Seal) Lucille Dora Collins (SEAL) Mrs. Alma C. Collins (Seal)\nWitness:\nRalph J. Ritter\nNorth Carolina\nGuilford County\nSworn to and subscribed before me this the 4th day of April 1959.\nRuth L. Pritchett Notary Public\nMy Commission expires 7-18-60\nWe note that respondent is designated in the caption and pleadings as \u201cDora Lucille Collins,\u201d in Alma\u2019s will as \u201cLucille Collins,\u201d and in the contract of April 4, 1959, as \u201cLucille Dora Collins.\u201d\nRespondent prayed that the petition be dismissed and that the costs of the proceedings be taxed against petitioners.\nPetitioners did not reply to the allegations of respondent\u2019s further answers and defenses.\nPursuant to Rule 38, G.S. 1A-1, petitioners filed \u201cInterrogatories\u201d on March 12, 1970. In her answers thereto, respondent asserted facts set forth in the opinion.\nOn June 1, 1970, petitioners filed a motion for summary judgment in their favor upon all issues arising in this cause, asserting \u201cthat the pleadings, together with the answers to interrogatories, show that there is no genuine issue as to material fact and that they are entitled to judgment as a matter of law.\u201d\nPetitioners\u2019 motion for summary judgment was heard on June 10, 1970, at which time, as recited in the judgment, Judge Johnston \u201cread the pleadings, the interrogatories, the answers to the interrogatories,\u201d and an affidavit of Henry N. Patterson, Jr., an attorney for respondent.\nIn accordance with the allegations in respondent\u2019s first further answer and defense, the court found as a fact that on January 5, 1970, which was after the filing of petitioners\u2019 (amended) petition, \u201ca holographic will of Alma Collins1, deceased, was probated in common form in the Estates Division of this Court,\u201d and that counsel for petitioners and respondent had stipulated \u201cthat said will is now binding on the parties for purposes of this action; that under the terms of said will, Dora Lucille Collins is the sole devisee of the real property of Alma Collins, deceased, who was the owner of an undivided one-half interest in said real property.... \u201d\nBased upon this stipulation and the documents referred to above, the court entered summary judgment which adjudged that, subject to the lien in favor of Guilford County for taxes, petitioner Sylvia Anne Collins Schoolfield and respondent Wanda Louise Collins each owned an undivided one-fourth interest in the subject property and that respondent Dora Lucille Collins owned an undivided one-half interest therein.\n(Note: Prior to the hearing on petitioners\u2019 motion for summary judgment, respondent\u2019s motions for a jury trial of the issues arising on the pleadings had been denied. The facts pertinent to respondent\u2019s exception to this order will be stated in the opinion.)\nUpon respondent\u2019s appeal, the Court of Appeals1 affirmed Judge Johnston\u2019s judgment. 12 N.C. App. 106, 182 S.E. 2d 648 (1971). On October 5, 1971, this Court granted respondent\u2019s petition for certiorari.\nTurner, Rollins & Rollins, by Elizabeth O. Rollins, for petitioner appellees.\nSmith & Patterson, by Henry N. Patterson, Jr., for respondent appellant." }, "file_name": "0604-01", "first_page_order": 632, "last_page_order": 646 }