13 S.E. 215 | N.C. | 1891
The question presented for review related to certain alleged advancements made by the said Barbee to several heirs mentioned in the petition.
The facts are set out in the opinion. Although the record is very voluminous, containing the report of the referee, a very considerable amount of testimony and many exceptions, it seemed to be the understanding of counsel that, for the purposes of this appeal, but two questions were necessary to be argued by them, and decided by the Court.
1. The first question involves the correctness of his Honor's ruling that the recitals of the payment of the considerations set forth in the deeds executed by the said Barbee to several of his children were, in the absence of allegations and proof of mistake, fraud, etc., so far conclusive as to preclude the introduction of parol testimony to show the true character of the transactions, and thus rebut the presumption of a sale arising from such recitals. There was abundant testimony to sustain the findings of the referee that the conveyances were intended as advancements. Indeed, it was admitted by the parties examined, that they (583) had not, in fact, paid the considerations mentioned, and it also appears that Mr. Barbee had charged some of his children with the payment of certain amounts in favor of others for the purpose of equalizing the partial distribution of his property. There can really be no *409
question that such was his intention, but it is earnestly insisted that parol testimony cannot be heard to show such intention until the conveyances are corrected in respect to the recitals above mentioned. In support of this position we are referred to the case of Wilkinson v. Wilkinson,
Nevertheless, this Court, in Shaw v. Williams,
In Michael v. Foil,
2. The remaining question to be considered is whether there was error in the exclusion of the testimony of Mrs. Ladd and others. The point is thus presented by his Honor in the case prepared for this Court: "The plaintiffs proposed to show by Mrs. C. A. Ladd, one of the defendants, that in the division of certain lands between his children by Gray Barbee, an agreement was made between them and Gray Barbee by *412 which some were to pay others certain sums for equality of partition. This was objected to by defendants, upon the ground that H. Tyler Barbee being dead and a party to the alleged agreement, the witness is incompetent under section 590 of The Code. Other parties to this action were also offered as witnesses by the plaintiffs for a similar purpose, to whose evidence similar objection was taken by the defendants." The court held "that the witness C. A. Ladd and other parties to this action are incompetent to testify to any transaction between herself and H. Tyler Barbee, now deceased, in which his estate is sought to be charged." We are of the opinion that the testimony, in so far as it affected the lands conveyed to H. Tyler Barbee, deceased, was incompetent under section 590, and that there was no error in its exclusion. The (588) witnesses were parties to the action and if there was such an agreement as contended for between them and their father, it was clearly to their interest that the deceased brother should be included therein, so as to charge his estate.
We have carefully examined the cases cited by plaintiffs' counsel, but clearly to their interest that the deceased brother should be included therein, so as to charge his estate.
We have carefully examined the cases cited by plaintiffs' counsel, but can find nothing in them which conflicts with the ruling of his Honor.
Error, and remanded.
Cited: S. c.,