43 W. Va. 737 | W. Va. | 1897
At December rules, 1891, R. L. Coleman, Emma P. Coleman, and William S. Parran filed their bill in equity in the Circuit Court of Hardy County, against Nina A. Par-ran, widow,1 D. T. Parsons, W. V. D. Parsons, John 0. Parran, Martha Barbee, and Samuel Barbee, defendants, alleging that the said parties plaintiffs and defendants are the heirs at law and widow of N. D. Parran, who, in 188-, died seised and possessed in fee simple of several valuable tracts of land, situate in said Hardy County, on or near the South fork of the South branch of the Potomac, consisting of three hundred and ten and one-lialf acres conveyed by John Stump to said N. D. Parran, by deed dated August 31, 1852, and the same tract on which N. D. Parran resided . at the time of his death, which deed from Stump to Parran is exhibited with the bill; also, a tract of seventy and three-fourth acres, which was assigned to said N. D. Par-ran in the chancery cause of Custer Bryan v. Godfrey See and others, which said assignment is. of record in said Plardy County Court clerk’s office, and a copy thereof exhibited with the bill; also, a tract of two acres adjoining the seventy and three-fourth-acre tract, conveyed to said Parran by diaries Lobb, special commissioner, by deed dated on the 27th of April, 1875, recorded in said office, and a copy thereof exhibited with the bill; also, a tract of fifty-eight acres, lying on Middle Mountain, but plaintiffs, not being able to find deed for same, could not locate the
The defendants John C. Parran and D. T. Parsons and W. V. I). Parsons, his wife, filed their joint answer, in tire nature of a cross bill, admitting the death of N. D. Par-ran ; that at the time of his death he was in possession of and occupying the several tracts of land mentioned in the bill, and sought to be partitioned, but denying that decedent owned it in fee; averring that respondents John 0. Parran and W. V. D. Parsons (formerly Parran) were the only children of said N. 13. Parran, deceased, and his wife, Adaline Louisa (nee Craigen); that their mother was the daughter of John Craigen, who departed this life in the latter part of the year 1826, leaving a will, which was probated in Hardy county on the the 9th of January, 1827, and exhibited a copy thereof; that John Craigen devised his home place and four tracts of woodland to said Adaline Craigen, afterwards Parran (said respondent’s mother), for and during her natural life, and after her death to the issue of her body, and in default, of any issue, then to the rest of her heirs; but Mary Ann Craigen, the wife of John Craigen, and executrix under the will, had a life estate in said lands; that at the time their father married their mother, which was about the year 1836, he was entirely without means; that all the money and property acquired by him was the result of the profits accruing from the real estate devised to their mother and grandmother as aforesaid, and from the sale of a large part thereof, and charging and averring that the seven thousand dollars paid for the three hundred and ten and one-half acres of land conveyed to
To which answer and cross bill plaintiffs R. L. Coleman, Emma P. Coleman, William tí. Parran, and the defen-ants Rina A. Parran, widow of R. D. Parran, deceased, Martha Barbee and tíamuel Barbee, filed their demurrer (which was overruled) and special replication, wherein they traverse every material allegation of the answer, denying that the seven thousand dollars, or any part thereof, paid for the three hundred and ten and one-half acres, the Stump land conveyed to N. D. Parran by deed of August 31, 1852, was the money and separate estate of Adaline, wife of R. D. Parran, derived from the sale of her maiden lands and other property, or that any part of said purchase money was paid out of the money or funds of Mary Ann Oraigen, or that the other lands in the bill mentioned were purchased by the said N. D. Parran with the money and separate estate of the said Adaline Parran, derived from the sale of her maiden lands and other property, or that the Stump land and other lands mentioned in said bill, or any portion thereof, were purchased or paid for with the money of the said Mary Ann Craigen, or paid for in the lifetime of said Mary Ann Craigen; and averring that all the said lands, except the títump land, were purchased by said R. D. Parran after the death of said Mary Ann Oraigen, and that the purchase money for the Stump land, with the exception of the cash payment of three thousand dollars, was paid after the death of said Mary Ann Oraigen; further, that the said real estate in the bill mentioned was purchased of said Stump by said R. D. Par-ran with his own money, and that the deed for said real estate was made to him, and that said real estate was held and owned by him in fee simple; and denying that said Adaline. Parran and Mary Ann Oraigen called the attention of said Parran to the fact that the deed was made to him, or that they asked that the deed should be corrected, or something done to show that said real estate belonged to them, and at the death of Adaline’s said husband should become the property of said John O. Parran and W. V. D. Parsons; and denying that any such claim as is asserted in
Respondents, further answering, said that said N. I). Parran purchased said real estate in the bill mentioned for his own use and benefit, and denied that any arrangement, agreement, or understanding was made, before or after the purchase of any of the said real estate by him, either with the said Mary A. Oraigen or his wife, that the said real estate, or any part of it, was purchased or held by him in trust for them, or either of them, or for the said John O. Parran and W. V. H. Parsons, or for any one
The will of George See provides for Mary Ann Oraigen, his daughter, who was the mother of Adaline Louise Par-ran, as follows: “I give and bequeath unto my son-in-law, John Oraigen, and his wife, Mary, and heirs, one-half of the plantation whereon I live, and adjoining Harness’ land, and all the advantages arising therefrom to them and the heirs of my daughter Mary’s body, forever. I give and bequeath unto my daughter Phoebe Oouchmán the upper half of my plantation, to be equally divided between her and John Oraigen as to quality and quantity; but, should my said daughter die without heirs of her own body, it is then my will and desire that said half of my plantation should be divided between my son-in-law John Oraigen and my son Adam See; and, should my son Adam dispose of the lands whereon he now lives, it is my desire that John Oraigen and Mary, his wife, shall have
Dr. N. D. Parran married Adaline Louisa Oraigen about the year 1886, and resided on the Oraigen place from that time until after the death of his wife, Adaline, which occurred about 1872. After his marriage to Miss Oraigen, who was his second wife, he seems to have had a rather checkered career from a financial standpoint. He became involved, and in 1843, on his- own application, he was declared a bankrupt by the United States district court of the Western district of Virginia, and on October 14th of that, year was discharged from all his debts. After this, Dr. Parran continued to live at the Oraigen place, and evidently took a very active interest in the affairs of the farm, and did considerable trading for himself, and, before his death, acquired some property at least in his own right, about which no question has been raised. At one time, in December, 1889, he sold a tract of some seven thousand acres of mountain land for four thousand dollars. James Wolf, a witness for appellants, testifies that he bought from him since the war a parcel of land for two hundred and twenty-five dollars; and M. H. See, one of appellants’ witnesses, on cross-examination, to the question whether he was acquainted with Dr. Parran, and whether his “stand
Appellants prove some declarations made by N. D. Par-ran, to the effect that he had no interest in the Stump farm. Witness George W. Cleaver says : “He told me
The cause came on to be heard on the 13th day of March, 1396, upon the papers formerly read therein, the answer of John O. Parran and W. V. D. Parsons in the nature of a cross bill, and the amended cross bill of the said John 0. Parran and W. V. D. Parsons, and upon the answer or special replication in writing to said cross bill and amended cross bill, and upon the second amended cross bill, making certain new parties to the suit, process duly executed thereon, and upon the depositions of witnesses with the objections thereon indorsed and sustained, by the objection of John O. Parran and W. V. D. Parsons; and, being argued- by counsel, the court dismissed said answers of John O. Parran and W. V. D. Parsons so far as they are in the nature of cross bills setting up a claim by the said respondents to be the sole owners of the land in the bill and proceedings mentioned, at the cost of said respondents, the court being of the opinion that their said claim was not sustained, from which decree said Parran and Parsons appeal to this Court, and assign the following errors : “(1) The court erred in holding,, as it must have been done, under the evidence in this cause, that Dr. Parran had any interest in the home place during the lifetime of Mary Ann Craigen, or his wife, Adaline L. Parran, or that he had curtesy in the home place of any of the outlying-surveys after Adaline L. ’s death. (2) The court erred in holding that the plaintiffs were entitled to any distributive shares of the lands acquired by Dr. Parran, as shown in this record. (8) The court erred in not holding that Dr. Parran’s interest in all the real estate derived by his wife, Adaline, under the wills of John Craigen, Mary Ann Craigen, and Phoebe Couchman, ceased and determined at Adaline’s death, and then reverted to petitioners. (4) The court erred in not holding that, as to the Stump place, Dr. Parran was simply a trustee for the petitioners; and, having been by them permitted to live on the farm till his death, all his interest therein ceased at his death. (5) The court erred in dismissing petitioners’ cross bill.”
It appears from the record that the original answer and cross bill of defendants John C. Parran and W. V. D. Parsons was, by leave of the court, amended by certain inter-
The respondents failed to produce or file such paper writings as they alleged were made and signed by N. I). Parran, acknowledging the real ownership of said lands, or any of them, to be in respondents, and made no attempt to prove by oral testimony the existence of such jjapers declaring an express trust, excepting by the testimony alone of respondents John O. Parran and W. V. D. Parsons, to the testimony of both of whom objection was made because of their incompetence as witnesses, under section 23, chapter 180, of the Code, and which objection was properly sustained. .Respondents allege that the Stump farm was paid for in the lifetime of Mary Ann Oraigen. The record does not show the exact date of the death of Mary Ann Craigeii, but it was some time in 1853. Her will was admitted to probate October 2, 1854. Respondents rely largely upon the testimony of Seymour Thorn, who testifies that the cattle, the proceeds of the sale of which were for the last two payments on the Stump farm, were sold before the death of Mary Ann Oraigen, while the fact is the last annual payment was due not until the fall of 1857; and the evi-
The evidence adduced by the appellants, taken alone, and without considering much contradictory testimony taken by appellees, is vague and uncertain, and wholly insufficient to establish a resulting trust; and appellants having failed to sustain the allegations of their cross bill alleging the existence of paper writings declaring an express trust, either by producing sucli papers, or proving their contents, the decree complained of is ailirmed, and the cause remanded to the circuit court, to be further proceeded in.
Affirmed.