{
  "id": 8650182,
  "name": "AMBROSE GRUBB et al. v. W. C. FOUST et al.",
  "name_abbreviation": "Grubb v. Foust",
  "decision_date": "1888-02",
  "docket_number": "",
  "first_page": "286",
  "last_page": "289",
  "citations": [
    {
      "type": "official",
      "cite": "99 N.C. 286"
    }
  ],
  "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": [],
  "analysis": {
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  "last_updated": "2023-07-14T20:19:59.259917+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "AMBROSE GRUBB et al. v. W. C. FOUST et al."
    ],
    "opinions": [
      {
        "text": "Davis, J.,\n(after stating the case). In the argument of counsel for the appellees it is insisted that parol evidence is admissible to show what lands were meant by the testator, Jos. Gordon, Sr., in the clause of the will recited, and that the several devises mentioned therein are incapable of definite location.\nWhatever may be the rights of the devisees of Joseph Gordon, Sr., as between themselves and as affected by the specified number of acres mentioned in the will as given, respectively, to the \u201cheirs of James Gordon\u201d and the others named, it is plain that the purpose of the testator was to give to his. wife, Eva M. Gordon, for life all his interest in 1,029 acres of land, with remainder to the persons and classes of persons mentioned in the will. There is nothing to indicate that the testator had more than one tract of 1,029.acres, and it was competent to show where that tract was.. \u25a0 Most of the cases cited by the counsel for the appellees were of insufficient descriptions in deeds, which could not be aided by pa-rol, but aside from the fact that a much more liberal rule is allowed in the interpretation of wills'than of deeds, there is no doubt that upon the face of the will there is a devise of 1,029 acres of land, and if there is any ambiguity it is latent and may be explained by parol. That latent ambiguities in wills may be explained by parol, is too well settled to need the citation of authorities.\nIn one and the same clause of the will 1,029 acres of land are devised to Eva M. Gordon for life, and specified numbers of acres to the classes of persons respectively named, \u201c and the balance of said land to be equally divided between all my childrens\u2019 heirs,\u201d &c. It is too plain to admit of doubt that \u201c the balance\u201d meant, is what remains of 1,029 acres of land after deducting the several specified number of acres given to the classes of persons named, and whatever difficulty, if any, the plaintiffs may have, in the event of a recovery in partitioning the lands as between themselves, that cannot avail the defendants.\nUnder the old practice, it was well settled that tenants in common could recover on a joint demise, or a recovery might be had upon the demise of only one tenant in common, to the extent of the interest of such tenant in common, and it was perfectly competent for the plaintiffs to show that the land mentioned in the will is the land in controversy in possession of the defendants.\nThe plaintiffs claim title derived from Jos. Gordon, Sr.,, deceased, under his will or as heirs at law, and the defendants claim under a conveyance and mean conveyances from the same person, and two issues are raised by the complaint and answers, involving \u2014 1st, the validity of the deeds through which the defendants derive title, and 2d, the statute of limitations, and the plaintiffs have a right to have these questions passed upon. . .\nError.",
        "type": "majority",
        "author": "Davis, J.,"
      }
    ],
    "attorneys": [
      "No counsel for the plaintiffs.",
      "Mr. C. 0. Raper, for the defendants."
    ],
    "corrections": "",
    "head_matter": "AMBROSE GRUBB et al. v. W. C. FOUST et al.\nDevise\u2014 Will \u2014 Description\u2014Evidence.\nThe description in a will, \u201c I give and devise to my wife all my interest in 1,029 acres of land for life,\u201d &c., and then, after giving to several persons named undivided portions thereof,'\u201cthe balance of said land to he equally divided between all my children,\u201d &c., there being nothing to indicate that the testator had other lands, is not so vague as to render the devise void, and parol evidence is competent to identify the land.\nCivil ACTION for the recovery of land, tried before Clark, ./., at December Term, 1887, of DavidsoN Superior Court.\nThe plaintiffs claim title to the land, 1,029 acres, described in the complaint \u201cas heirs at law and devisees of Joseph 'Gordon, Sr.\u201d\nThe defendants also claim title to the land in their possession, respectively derived from Joseph Gordon, Sr., or by long possession under color of title.\nThe separate answers of Robt. Williams, Mary P. Moore .and E. A. Clodfelter are sent up with the record.\nThe answer of Robert Williams denies the title of the plaintiffs \u2014 alleges title in himself to 170 acres of the land \u25a0claimed by plaintiffs, which is described by metes and bounds in his answer, disclaims as to the balance, and says \u25a0\u201cthat he has been in the continued possession of the said tract of land (170 acres) under a deed for more than forty years, under known and visible lines and boundaries,' and under colorable title, claiming the same as his own adversely \u25a0to the plaintiffs and all others, and for more than seven years before the commencement of this action,\u201d &c., and relies on the statute.\nMary P. Moore answers for herself and R. B. Plefler (her tenant), and denies the title of the plaintiffs. She claims -title to 500 acres of the land described in her answer by virtue of a conveyance from \u201c Joseph Gordon, Sr., ancester of the plaintiffs,\u201d made in 1838, to one Lee, trustee, &c., and mesne conveyances \u2014 the land conveyed to Lee being the land described in the plaintiffs\u2019 complaint. She further says that she and those under whom 'she claims have been in possession under color of title up to known and visible boundaries, claiming adversely to all others, for more than forty years, &c., and relies upon the statute.\nA. E. Clodfelter answers denying title of plaintiffs, and claiming title to thirty-four acres, described in his answer.\nThese answers present the questions in controversy.\nOn the trial the plaintiffs introduced a deed from John H. Finch, dated October 22d, 1838, conveying in fee 1,029 acres of land, alleged by plaintiffs to be the locus in quo, to Joseph Gordon, Sr., under whom all the plaintiffs and most of the defendants claim title.\nPlaintiffs then introduced the will of Joseph Gordon, Sr., in which occurs the following:\n\u201c I give and devise to my beloved wife, Eve M. Gordon, all my interest in 1,029 acres of land to have during her life or widowhood, and I also will to my son, James Gordon\u2019s heirs, 25 acres of land, and also Joseph Gordon\u2019s heirs, 25 acres of land, and also John Gordon\u2019s heirs, 25 acres of land, and also William Gordon\u2019s heirs, 25 acres of land, and also my son Doctor, 125 acres of land, to him to hold to and his in fee simple forever, and also to Catharine Medly\u2019s heirs, 20 acres of land, and also to Mary Fine\u2019s heirs, 20 acres 'of land, and also to Eve Ceicil\u2019s heirs, 20 acres of land, and also to Nelly Gordon\u2019s heirs, 25 acres of land, and also to Lydia Gordon 25 acres of land, and also to Levi Shuler\u2019s heirs 10 acres of land. The balance of said land to be equally divided between all my children, heirs,\u201d &c.\nThe plaintiffs introduced evidence tending to show that the several tracts of land in possession of the defendants were conveyed by the deed from Finch to Gordon above mentioned; and also that plaintiffs were the grand-children of Joseph Gordon, Sr., deceased, and some of them his immediate heirs.\nThe plaintiffs then introduced a witness and proposed to show that the land mentioned in said will is the land in controversy in possession of defendants. The defendants objected on the ground that the descriptive words in the will were too vague to let in parol evidence for the purpose of fitting the description to the thing described. The Court sustained the objection, and in deference to his Honor\u2019s ruling, the plaintiffs submitted to a nonsuit and appealed.\nNo counsel for the plaintiffs.\nMr. C. 0. Raper, for the defendants."
  },
  "file_name": "0286-01",
  "first_page_order": 314,
  "last_page_order": 317
}