{ "id": 8649950, "name": "GEORGE R. HORTON and wife v. JUDSON LEE", "name_abbreviation": "Horton v. Lee", "decision_date": "1888-02", "docket_number": "", "first_page": "227", "last_page": "233", "citations": [ { "type": "official", "cite": "99 N.C. 227" } ], "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": "1 Ired., 244", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 2104251 ], "opinion_index": 0, "case_paths": [ "/nc/23/0244-01" ] }, { "cite": "4 Dev., 438", "category": "reporters:state", "reporter": "Dev.", "opinion_index": 0 }, { "cite": "10 Ired., 431", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 1972696 ], "opinion_index": 0, "case_paths": [ "/nc/32/0431-01" ] }, { "cite": "88 N. C., 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683381 ], "opinion_index": 0, "case_paths": [ "/nc/88/0581-01" ] } ], "analysis": { "cardinality": 533, "char_count": 11972, "ocr_confidence": 0.531, "pagerank": { "raw": 9.325670875106115e-08, "percentile": 0.5133654510359484 }, "sha256": "56332439780e2e4e17490217afd02dc7790535a60058050ea69ababa5d8f757c", "simhash": "1:72491c435c07b196", "word_count": 2187 }, "last_updated": "2023-07-14T20:19:59.259917+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE R. HORTON and wife v. JUDSON LEE." ], "opinions": [ { "text": "Davis, J.,\n(after stating the case). Whatever was embraced in the first clause of the will of William Lee passed under the sixth clause to the plaintiff after the death of Martha Lee.\nThe plaintiff says it embraced and included the fifty-nine acres in dispute. The defendant says, no \u2014 that as to the fifty-nine acres Martha Lee'held, not under the will of Wm. Lee but under a title derived by inheritance from her father, and that she was not put to her election to take under the will or to hold by her independent title in fee.\nTwo questions are involved:\n1st. Was the land in controversy included in \u201cthe tract of land whereon\u201d the testator resided and embraced in the first and sixth clauses of his will ?\n2d. If so, did Martha Lee accept the devises to her with a .knowledge of the fact that it was so included?\n1. There is no ambiguity upon the face of the will. The testator devised \u201cthe tract of land whereon\u201d he resided. The area and extent of that tract and what was included therein, are questions of fact. Did it include the fifty-nine acres? Did the testator intend to include the fifty-nine acres ? It is true, as was said in Isler v. Isler, 88 N. C., 581, \u201c that there is a prima facie presumption always that a testator means only to dispose of what is his own, and what he has a right to give; and if it be at all doubtful by the terms of his will, whether he had in fact a purpose to dispose of property really belonging to another, that doubt will govern the Courts, so that the true owner, even though he should derive other benefits under the will, will not be driven to make an election. But if, on the other hand, there should be a manifest purpose expressed in the-will to dispose of the thing itself, then it is wholly immaterial whether he should recognize it or not as belonging to another, or whether he shall believe that the title and right to dispose of it vested in himself or not.\u201d\nIt is the clearly expressed purpose of the testator that the plaintiff should have \u201cthe tract of land whereon\u201d he resided, after the death of her mother, but when it appeared that the land in dispute was inherited by the devisee Martha from her father, \u201cit would be presumed,\u201d as was said by his Honor, \u201cthat the testator did not intend to include the fifty-nine acres in the devise to his wife, but only his own land;\u201d but this presumption may be rebutted, and parol evidence is competent to fit the thing to the description and show what was in fact included in the tract. Stowe v. Davis, 10 Ired., 431; 1st Greenleaf, \u00a7 288; Dodson v. Green, 4 Dev., 438; Bolick v. Bolick, 1 Ired., 244.\nWhen there is no doubt, as here, apparent upon, the face of the will as to what was meant by the testator, but the doubt is raised bjr something extrinsic \u2014 that is latent \u2014 parol evidence is competent to show what was meant. 1 Greenleaf, \u00a7 297; D. & D. Institute v. Norwood, Bus. Eq., 65; Kincaid v. Lowe, Phil. Eq., 41.\nIn Branch v. Hunter, Phil. Law, 1, evidence offered to show that a tract of land, called the \u201c Enfield tract,\u201d embraced the land in controversy was rejected by the Court below, but on appeal was held to be error.\nLight may be thrown upon the first clause by the fourth: When the testator gave to his wife, among other things, \u201cthe corn and .fodder raised on the land whereon I now live,\u201d would she not have been entitled to the corn and fodder made on the entire farm cultivated as one, or would it have been the duty of the executors to sell what was raised on the fifty-nine acres ?\n2. If the land in controversy was embraced in the tract on which the devisee resided, did Mrs. Lee elect to take the devises made to her with a knowledge of that fact? It is only material that she should have known the fact that the fifty-nine acres were included in the tract given to her for life and then to her daughter Sarah, and if, with this knowledge, she accepted the property given to her for life, then neither she, nor any one claiming under her, would be heard to assert any claim that would defeat the will of the testator. Adams Equity, \u00a7 96 and note. It is there said that \u201c an election once made, though by matter in pais, is binding.\u201d\nThere was error in the instruction of the Court, and the plaintiff is entitled to a new trial. Error.", "type": "majority", "author": "Davis, J.," } ], "attorneys": [ "Messrs. Fuller & Snow, for the plaintiffs.", "Messrs. Battle & Mordecai, for the defendant." ], "corrections": "", "head_matter": "GEORGE R. HORTON and wife v. JUDSON LEE.\nWill \u2014 Election\u2014Parol Evidence.\nDevise of \u201cthe tract of land whereon I now live\u201d to testator\u2019s wife for Ufe, then over to a daughter. Certain crops raised on the \u201ctract \u201d were also given to the wife. The tract on which the testator lived embraced 59 acres (the subject of the suit) which descended to the wife from her father\u2019s estate:\nHeld, the presumption that the testator did not intend to include the 59 acres in the devise to the wife may be rebutted, and parol evidence is competent to show what was in fact included in the \u201c tract\u201d whereon he lived.\nHeld further, where in such case the evidence tended to show that the wife elected to take the property devised, knowing that the 59 acres were included in the \u201c tract,\u201d and occupied the' premises, until her death, without dissenting from the testator\u2019s will, then no one claiming under her can set up any claim that would defeat the will. An election once made, though by matter in pais, is binding.\nCivil actioN, tried before Merrimon, J., at August Term, 1887, of Wake Superior Court, for the recovery of land and damages for its detention.\nThe material facts are as follows:\nWm. Lee died in the County of Wake, in 1861, leaving a last will and testament, which was duly proved at the August Term, 1861, of Wake County Court, and which among other things contains the following:\n\u201cItem 1. I lend to my beloved wife the tract of land whereon I now live during the term of her natural life.\n\u201c Item 2. I lend to my beloved wife a certain tract of land adjoining William A. Rhodes, known as the Herndon place, during the term of her natural life.\n\u201c Item 4. I give and devise to my beloved wife all my household and kitchen furniture, and the corn made on the tract of land whereon I now live and on the Herndon place.\n\u201cItem 6. I give and bequeath to my youngest daughter, Sarah, the tract of land whereon I now live and my negro man named Squire, after the death of her mother.\u201d\nIt was admitted that Mrs. Martha Lee died on the_\u2022_ day of January, 1887; that Sarah Horton, the plaintiff, was the youngest daughter of William Lee and the person mentioned in the 6th item of said will.\nIt was admitted that the widow of Wm. Lee took possession of the tracts of land devised to her in said will, and used and occupied them until her death, and did not dissent from the will.\nIt was admitted that while the complaint sought the recovery of the whole tract of some 180 acres, yet that, since the bringing of said action, possession of the tract had been given the plaintiffs, with the exception of the 59 acres described in the answ\u00e9r, and that said 59 acres were alone in controversy.\nIt was further admitted that the 59 acres, spoken of in the answer, was inherited by Mrs. William Lee from her father.\nAt this stage of the trial the plaintiffs offered to show by witnesses that the words used by Wm. Lee in the 1st and 6th items of his will, to-wit: \u201c the tract of land on which I now live,\u201d included the 59 acres hereinbefore referred to as having been inherited by Mrs. Lee from her father, and now in controversy.\nAfter the will was offered and read the Court said that, as it was admitted that at the time the will was executed Martha Lee was the owner of the 59 acres in 'controversy, the same having been set apart to her in partition proceedings as her share of her father\u2019s real estate, it would be presumed that the testator did not intend to embrace the said 59 acres in his devise to his wife, but only his own land.\nPlaintiffs\u2019 counsel excepted.\nThe counsel for the defendant objected to the reception of such other evidence, but the Court permitted it to be offered, and it was as follows:\n\u201cW. A. B. Richardson testified, that he knew the tract of land on which Wm. Lee lived at the time of his death, since 1853 or \u201954; been over the entire tract, of between 100 and 200 acres; when first knew it, was like great many other old plantations; don\u2019t know where the particular 59 acres are ; the entire tract was cultivated as one; no distinction or separation in it; the tract was known as Wm. Lee\u2019s tract of land, and the one on which he' lived at his death; Lee had a good many other tracts \u2014 one known as the Herndon place; another on the other side of Little River; never heard Wm. Lee speak of it. * * * The 59 acres is part of the David Bunch land ; the mother of the plaintiff Sarah and the defendant inherited it from her father, David Bunch ; that Wm. Lee, who married Martha Bunch, bought of her brother and sisters their interests in their father David Bunch\u2019s land after partition, and those interests thus bought, together with Martha\u2019s 59 acres, constituted one tract since Wm. Lee married Martha, and that was the one on which Wm. Lee lived at the time of his death.\n\u201c Wm. Underhill testified, that he knew the land well; is 75 years old; the place Wm. Lee lived on was known as the Bunch place or aunt Polly\u2019s place; never heard it called anything else; since it got out of Bunch it has been called the Lee place; the 59 acres in controversy and the interests bought by Wm. Lee from the Bunch heirs are adjoining\u2014 one tract; Lee lived on the place he got from the Bunch heirs. * * * Wm. Lee and Miss Martha Bunch, who are father and mother of Sarah Horton and defendant, were married before 1831, and had children before 1848.\n\u201c Report of the commissioners partitioning the David Bunch land was introduced, which showed that the part inherited by Martha was allotted to her husband, Wm. Lee, although plaintiffs admit that, the legal title, by virtue of the partition, was in Mrs. Martha Lee at the time Wm. Lee made his will.\n\u201cW. A. B. Richardson, re-called, says, that the defendant last fall admitted to him that his father, Wm. Lee, gave in the tract for taxation, as a whole, including the 59 acres.\n\u201c Gideon Liles testified, that he was 58 years old ; lived always about one-fourth mile from land in controversy; knew it well; Wm. Lee cultivated it all together, under one farm \u2014 the whole plantation; it was all called Wm. Lee\u2019s home; it was all together as one plantation.\n\u201c W. A. B. Richardson, re-called, testified, that Mrs. Martha Lee, widow, of Wm. Lee, died in January, 1887 ; have heard Mrs. Martha Lee say several times the l\u00e1nd was hers and she intended it for her daughter Sallie \u2014 meaning the plaintiff ; that her husband had willed it to her for life, and after that to his daughter Sallie; witness, always, thought she meant the whole land, but she made no definition and no distinction ; she said it was her land.\n\u201cThadeus Lee, brother of plaintiff and defendant, testified, that he heard his mother, Martha Lee, say all of the tract was her land, and at her death it went to Sallie; father cultivated the land all together in his lifetime.\n\u201c Geo. R. Horton testified, that in all the land willed to Mrs. Martha Lee by Wm. Lee, there were some 300 acres out of 500 acres.\n\u201cDefendant objected, specially to the testimony of W. A. B. Richardson and Thad. Lee as to declarations of Martha Lee, set out above.\n. \u201c The following issue was submitted to the jury:\n\u201c Are the plaintiffs the owners and entitled to the possession of fifty-nine acres of land described in the answer of the defendant ?\n\u201c The Court instructed the jury that if they believed the testimony and admissions of the parties, the plaintiff was not entitled to recover, and directed the issue to be answered in the negative. There was a verdict for defendant, under the Court\u2019s direction, and judgment accordingly..\nThe plaintiffs excepted to the charge of the Court, and appealed from the judgment rendered.\nMessrs. Fuller & Snow, for the plaintiffs.\nMessrs. Battle & Mordecai, for the defendant." }, "file_name": "0227-01", "first_page_order": 255, "last_page_order": 261 }