Rooker v. Rodwell, 165 N.C. 80 (1914)

Feb. 25, 1914 · Supreme Court of North Carolina

165 N.C. 80

JOHN P. ROOKER v. T. O. RODWELL, Administrator of LUCY THOMPSON et als.

(Filed 25 February, 1914.)

Contracts — Agreement for Support of Intestate — Executors and Administrators — Evidence—Paper-writing—Corroboration.

In an action on account against an administrator for tbe support and maintenance of bis intestate, there was Evidence tending to show that plaintiff, who bad married a daughter of tbe intestate, moved upon tbe lands of tbe latter, cleared and cultivated ' same, and built a bouse’ thereon, wherein they all then lived, and that plaintiff supported tbe intestate in accordance witb an agreement that it should be in consideration of bis having tbe title to tbe land at her death. A paper-writing purporting to contain tbe agreement, signed by tbe mark of tbe intestate and witnessed, was found among tbe valuable-papers of tbe witness, after bis death, in an envelope stating it belonged to tbe plaintiff and was to be given to no other person. Tbe bandwriting on tbe paper and envelope was that of tbe deceased witness thereto: Held, (1) a motion to nonsuit was improperly granted; (2) tbe paper-writing was competent in corroboration of the parol contract. ■

Appeal from Peebles, J., at September Term, 1913, of "WarREN.

This was a civil action upon an account for the support and maintenance of the defendant’s intestate, Lucy Thompson, deceased. At the conclusion of the evidence the court sustained a motion to nonsuit, and the plaintiff appealed.

J ohn H. Kerr for plaintiff.

T. T. Kichs, Tasker Polk, W. S. Yarborough, Jr., for defendant.

BkowN, J.

Tbe evidence offered by tbe plaintiff tends to prove that tbe plaintiff, tbe bnsband of tbe daughter of tbe defendant’s intestate, resided witb bis motber-in-law upon tbe tract of land described in tbe pleadings; that plaintiff cleared tbe land, built a borne on it for bis wife, motber-in-law, and bimself. * 1

Upon tbis place these three people lived, tbe plaintiff and bis wife having no children, tbe plaintiff supporting and maintaining tbe family until the-two ladies died;-Mrs. Thompson in tbe year 1906, and bis wife about a year thereafter.

Tbe plaintiff offered evidence- to tbe further effect that be supported bis motber-in-law, and that tbe services rendered were not rendered gratuitously, but it was understood that they were to be paid for by a conveyance to him of tbis land.

Tbe evidence of Gupton tends to prove in substance that tbe intestate told him that Mr. Rooker said that be would not stay there unless she would give him title to tbe land, and that while tbe defendant’s intestate was at bis bouse, Mr. Rooker came there, and that she told Mr. Rooker in witness’s presence, if be (Rooker) would have a paper written she would give it to him so be could stay there and take care of her. Witness further testified that be beard no more of tbe trouble, and that tbe plaintiff supported, cared for, and maintained tbe defendant’s intestate and put all tbe improvements upon tbe tract of land.

Plaintiff offers paper-writing marked “Exhibit A” in evidence, to rebut tbe presumption that tbe support of Mrs. Thompson was gratuitous. (Objection; sustained; exception by plaintiff.)

Exhibit A.

State oe Noeth Caroliha — Warren County.

March 14, 1881.

■ Tbis is to certify that I have tbis day agreed to give James Rooker a right and title to my tract of land, known as a part of the Tucker tract: Provided, he will take care of me- my lifetime, and treat me with good respect; and Provided further, that he is not to quarrel and drift me about; he must treat me as one of the family; and if said Rooker fails to comply with this agreement, then this paper will be null and void.

Her Lucy X ThomesoN.

Witness: W. T. Williams.

There is evidence tending to prove that this paper-writing was found among the papers and in the safe of the late George W. Davis, who conducted a mercantile business near .the home of the parties to this action, indorsed on- the envelope containing the same in the handwriting of said Davis: “This paper belongs to James P. Rooker, and must not be given to any other person.” It was handed to Mr. Rooker some time after the death of Mr. Davis, and after the death of Mrs. Thompson; the envelope which contained Exhibit “A” was marked Exhibit “B.”

There is also the evidence of witness tending to prove that the entire paper is in. handwriting of the subscribing witness. As the intestate made her mark, her handwriting is incapable of proof.

We are of opinión that his Honor erred in ruling .out this paper upon the evidence and for the purpose offered. It is not relied upon by the plaintiff as the basis of the action, a contract to convey land, but is offered only to rebut any presumption or contention that the plaintiff’s services were gratuitous. Dunn v. Currie, 141 N. C., 125; Avitt v. Smith, 120 N. C., 393.

The value and credibility of the evidence tending to prove the identity and execution of that paper is a matter for the jury.

New trial.