Bird v. Graham, 21 N.C. 168, 1 Dev. & Bat. Eq. 168 (1835)

Dec. 1835 · Supreme Court of North Carolina

21 N.C. 168, 1 Dev. & Bat. Eq. 168

JOHN BIRD, Adm. &c. v. MARGARET GRAHAM, and Others.

A receipt from one of the next of kin, expressed .to be for his part of the personal estate, but following a statement in which he is credited for his share of the “perishable estate” of the intestate, is not a receipt in full of the personal estate, so as to exclude him from claiming an interest in a negro belonging to the estate; particularly when it appeared that the sum for which he was credited was the same that each of the other next of kin received for their respective shares of the perishable estate, independent of their interest in the negro.

Where a negro remains in the possession of the administratrix, who is also the widow of the intestate, for twelve or fifreen years, no presumption of satisfaction will arise from the delay against one of the next of kin, to prevent his claiming his interest in the negro; especially if it appears that he was under the belief that his infant child, and not himself, was entitled to the interest in the said negro.

The plaintiff charged that his deceased wife, Charlotte, of whose estate he had been duly appointed administrator, was entitled, as one of the next of kin of Robert Graham, to a sixth part of the said Robert’s personal estate; that after his intermarriage with her, and some time in the year 1812, the plaintiff received from the administrators of Robert Graham the sum of twenty-eight dollars, her share of that part of the said personal estate which had been sold by the said administrators, and gave his receipt therefor; that his said wife was moreover entitled to a sixth part of a negro woman, Oney, which had not been sold, and for which nothing had ever been received by himself or his said wife; and the plaintiff claimed that the defendant should account to him as her administrator for the sixth part of the said negro and her issue since born, and their hire arid profits. The defendants alleged in their answers, that Margaret Graham, one of the administrators of Robert Graham, had demands against the plaintiff to an amount exceeding the value of the one-sixth part of the negro woman, Oney; that by an árrangement between the plaintiff and the said Margaret it,was agreed that the plaintiff should allow these demands as a payment and satisfaction for and on account of the sixth part to which his wife was entitled of the said negro; and the plaintiff, in pursuance of said agreement, and having received actual payment of his wife’s part of the residue of the personal property, did thereupon, in the year 1812, execute a receipt in full of all claims which he and his. wife had upon the estate of Robert Graham. In the answer of the defendant Margaret Graham,- she declared that she had this receipt ready to be produced. By an agreement of the counsel of the parties filed in the cause, it was declared, that objections were waived to the testimony taken because of the non-production of the receipt. The Court having examined that testimony thus rendered competent, and feeling not a little doubt in determining the disputed fact whether the receipt referred to by the parties, plaintiff and defendants, were a receipt in part only, or a receipt in full, and deeming that to be a fact of much importance in the controversy, directed a special'reference for the purpose of ascertaining the true nature of the receipt; and reserved the further consideration of the cause until the report should come in. The commissioner made his report, to which he annexed the original receipt itself, which was at the foot of an account in which the administrators had charged the plaintiff with certain items, and given him credit by his share of “ the perishable estate” of their intestate; and the receipt then followed in these words: — “Received the above sum of eleven dollars and seventy-six cents, the balance of twenty-eight dollars and thirty-four cents, the amount due me from the administrators of Robert Gra-bam, Jr. deceased, for my share of the personal estate of said Robert Graham, Jr. deceased, as guardián for Robert Bird, one of the legatees of said estate.” (Signed) “ John Bird.” It appeared that twenty-eight dollars and thirty-four cents was the sum received by each of the other next of kin, independent of Oney. It further appeared, that the said negro woman remained in the possession of the defendant, Margaret Graham, who was the widow of Robert Graham, Jr., until 1825, within four years after which time the present bill was filed.

December, 1835.

Mendenhall for the plaintiff.

Winston for the defendant.

Gaston, Judge.

The inquiry which the Court directed, has been made. To the commissioner’s report is annexed the receipt, the character of which we wished to ascertain, and that manifestly does pot comprehend the plaintiff’s or the plaintiff’s wife’s undivided interest in Oney. It follows upon a statement in which the plaintiff is credited solely for his share of the perishable estate of Robert Graham. There is no room to doubt that the term perishable was intended to exclude this interest; for we find the amount of twenty-eight dollars and thirty-four cents, at which the share of the perishable estate is stated to be, the same received by the other children who have retained Oney and her increase. There is then no proof that any payment or satisfaction was made to the plaintiff on account of the subject-matter of this suit, unless we are to presume satisfaction merely because of the delay in instituting it. Now, it appears that Oney remained in the possession of Mrs. Graham, the widow and administratrix, until 1825; and no presumption during that time arises against any of the persons entitled to distributive shares. The benefit from her labour was a slender compensation for rearing her children; and this bill was filed in less than four years thereafter. Besides, it would seem from the terms of the receipt,, which is given by the plaintiff as father and guardian of “ Robert Bird,” that the plaintiff supposed the right to be, not in himself, but in his child, and if so he had no reason to fear that the child’s claim could be prejudiced during his minority. The lapse of time under these circumstances is insufficient to warrant the presumption of satisfaction, and the Court therefore declares that the plaintiff, as administrator of his deceased wife, is entitled to an undivided sixth part of Oney and her increase. This declaration is made because the parties before the court have expressly waived all objections because of the want of other proper parties. But a final decree cannot be rendered unless those who hold Oney and her increase are before the Court. To enable the plaintiff to have this done, the cause is ordered to be remanded to the Court of Equity for the County of Montgomery.

Per Curiam. Cause remanded accordingly.