Hunt v. . Wheeler , 116 N.C. 422 ( 1895 )

This case is presented upon agreed state of facts. From the judgment which was rendered in the court below both parties appealed. We will treat both appeals together.

The value of the tract of land devised by the testator Moses Wheeler to his grandson, William T. Wheeler, in remainder after the death of the widow of the testator, was ascertained, according to the manner prescribed by the will, to be $1,380. One-half of this amount was, under the will, to be paid to the daughter of the testator, Elizabeth Meadows, a married woman. The defendants contend that the land itself is not charged with the amount in favor of the daughter, and the plaintiff insists that it is. The solution of the question depends upon the true construction of the following clause of the will:

"Item First. I lend to my wife Elvira, during her natural life, (424) the tract of land lying near and adjoining the lands of my son Dudley, and at her death I give the said tract of land to my grandson William T. Wheeler, son of my said son Dudley, with this understanding, that at the death of my said wife the said tract of land is to be valued by three freeholders to be chosen by my executors; and my said grandson is to pay to my daughter Elizabeth Meadows one-half of said valuation, said one-half may be paid by and from the rent of the same, or from any other source, except by the sale of the same, as I do not wish it sold for division, being too small a tract for division between them, and my desire being to secure said tract of land to my said grandson."

We are of the opinion that the one-half value of the land (to wit, $690), the daughter's share under the will, is a charge upon the land.Carter v. Worrell, 96 N.C. 358; Aston v. Galloway, 38 N.C. 126; Rice v.Rice, 115 N.C. 43. The daughter, after having become a widow, married a second time, and died on 28 January, 1888, leaving her husband surviving her. The plaintiff qualified as her administrator on 12 November, 1894, and on that day commenced this action against the defendants. The defendants insist that the statute of limitations (section 155 (1) of The Code) is applicable to the facts in the case and is a bar to the action. We are not of this opinion. Section 158 of The Code applies. The defendants insist again that the agreement made on 2 January, 1888, between the daughter and the grandson of the testator relieved the land of the charge upon it (if it ever existed) and made the compromise obligation on the part of the grandson purely a personal one against him. This cannot be so, for the agreement especially and particularly recites the contrary. The following is the agreement:

"I, Thomas P. Meadows, attorney in fact for Robert L. Gay (425) and Elizabeth Gay (formerly Elizabeth Meadows) a daughter of Moses Wheeler, deceased, having been appointed by them attorney in fact to represent their interest in the settlement of the estate of said Moses Wheeler, having agreed with W. T. Wheeler to accept of him the sum of four hundred dollars in full satisfaction of the amount due from him to said Elizabeth Gay as a charge upon the land devised to W. T. Wheeler, in and by the last will of Moses Wheeler, provided the same shall be paid in two months from this date; and whereas he has paid me fifty dollars of the said four hundred, now I do hereby authorize John W. Hays as my attorney to receive from W. T. Wheeler the balance of said sum, to wit, $350, provided the same shall be paid within two months from this date, and when so paid the said Hays is authorized to execute to W. T. Wheeler such release and acquittance as shall fully discharge him from all further liability on account of said charge upon said land."

The defendants can take no benefit from the agreement of compromise, for although it appears that the daughter died before the time when the money agreed upon in the compromise should be paid, and that there was no personal representative to receive it when it fell due, yet, after the plaintiff was appointed administrator, no part of the same was paid or offered to be paid — the defendants all the time setting up the plea of the statute of limitations to defeat all recovery, and also relying upon the debt being a personal one against the grandson and not a charge upon the land. The judgment of the court below is affirmed in so far as it declares that the amount due to the plaintiff's intestate (the daughter of the testator) is a charge upon the land and to be paid by the rents from the same, and the appointment of a receiver to take charge of the land and rent it out.

The plaintiff however ought to have had judgment for the sum of $690, half the value of the land, less fifty dollars which was paid (426) by the grandson on the 2d of January, 1888, with interest from 9 April, 1885, until paid. The judgment is affirmed and modified as above.

Affirmed and modified.

Cited: Field v. Wheeler, 120 N.C. 269; Parker v. Cobb, 131 N.C. 28;Ramsey v. Browder, 136 N.C. 253; Edwards v. Lemmonds, ib., 331; Brown v.Wilson, 174 N.C. 676.