16 S.E. 765 | N.C. | 1893
PLAINTIFFS' APPEAL. The nature of the proceedings and the facts in relation thereto, including the issues submitted to the jury and the report of R. McBrayer, referee, are fully set out in the report of the defendant's appeal in the case between the same parties, ante, page 759.
The plaintiffs filed the following exceptions to the report of the referee: "The plaintiffs except to the report of the referee for that (1) he finds that Mrs. Elizabeth A. Smith is the owner of a life estate in said land; (2) said referee had no right to take testimony or consider the same; (3) said referee found that Lula R. Miller, C. H. Miller and J. H. Miller are not entitled to any part of the damages assigned against the city; (4) said referee finds that the remainder, after deducting the value of Elizabeth A. Smith's alleged life estate, should not be paid to any one, whereas he should have found that the entire amount of damages should be paid equally to the plaintiffs."
The exceptions were overruled, and from the judgment entered on the report of the referee (see report of defendant's appeal, page 759) in favor of Elizabeth Smith for a part of the money recovered as damages for taking the land and ordering an investment of the balance until the termination of her life estate, the other plaintiffs appealed. The proceedings were begun by the defendant as plaintiff, and against one of the plaintiffs as defendant, the other plaintiffs having since come in and been made parties by consent. By some means (771) the relative position of the plaintiffs and defendant was changed *509 when the case got into the Superior Court, but this is immaterial as also are some other technical irregularities which were waived, no exception having been taken at the time.
As to the first and second exceptions by the plaintiffs to the referee's report, the will of James M. Smith was in evidence without exception, and it appears therefrom (the same having already been construed by this Court in Miller ex parte,
As to the remaining exceptions, the defendant was estopped to deny that the title of the land was in the plaintiffs, but in which of them, or in what proportion the damages assessed should be divided between them, was a matter arising after verdict. This in no wise concerned the defendant. The report of the referee and the judgment of the court thereon were in accordance with the construction placed on the will. Miller ex parte,supra. The value of the life estate was assessed as provided by The Code, sec. 1352. The balance of the recovery is the present value of the interests of the remaindermen. It stands in the same plight and condition as the realty itself stood, and upon the expiration of the life estate it will be divided among the parties then entitled in the manner provided by the will as to the realty for which it has been substituted.
The usual manner of ascertaining the damages is by estimating the damages and benefits and deducting one from the other. Dillon Mun. Corp., secs. 624, 625. And this is contemplated by the defendant's charter. Private Laws 1883, ch. 111, sec. 37. Whether this shall be done by the jury, deducting one from the other and finding the difference as their response to a single issue submitted as to the damages, or whether the court shall submit, as in the present case, (772) two separate issues, one as to the damages and the other as to the benefits, is a matter of discretion. Humphrey v. Trustees,
AFFIRMED. *510