gave judgment for theTleren»' dant on the two first points — .No opinion was given on the third point.
Taylor — Judge—Contra, on both points.
Locke — Judge, having been of counsel in the cause, gáví> no opinion.
Windows v. Mitchell, 5 N.C. 127, 1 Mur. 127 (1806)
June 1806
·
Supreme Court of North Carolina
5 N.C. 127, 1 Mur. 127
Windows vs. Mitchell
—From Salisbury.
A on his deathbed, directed b. hisfieicUoa and’ set *sara there depo. in the event SB .'Yssl° di~ yule among A’s chit-(Iron *1 his is not; a«do “aus^to'1 clliU Defendant’s of die *128J*ñd ofWs8 oeived8 the notgood'e -science vest üie mo-a^trasie* rfVsoMU áren, and defeat, pie statute
*127This was an action on the case for money had and received to the use of the plaintiff. — Adarii Windows the father of the plaintiff on liis death bed gave directions to the de- ^ fendant to go i^o his cornfield to a particular place therein pointed out and get a certain sum of money which he had deposited there, and in the event of his death, to divide the money among Iris six children, the plaintiff being one, Mitchell the defendant went to the place pointed out and found seven hundred and one dollars, thirty-five cents Adam Windows then made his will arid therein took no notice of this money — The only evidence adduced by the plain- * + vi tiff to prove the direction to the defendant to go into the field and get the money, and in the event of the death of Adam Windows, to divide it among his children also the defendant’s having received the money and the amount thereof, was the acknowledgment of the defendant, who told one of ths witnesses* in addition to these facts* that he *128to discharge the plaintiff’s demand. — The defendant was tins executor of Adam Window’s Will.
The following questions were made in this cause and sent to this Court foi> the opinion of the Judges. 1st. Whether ^ie Klancy claimed by the plaintiff can be considered as a a donatio mortis causa. 2nd. Whether the defendant’s no knowledgement of the facts stated in the case shall be deemed sufficient to defeat the statute of distributions and to vest ^ie morieJ ,a him as trustee for the use of Adam Window’s children ; and his acknowledgment of this fact be good and sufficient evidence,thereof. 3rd. Whether an action at law can be maintained for the recovery o'f this ihoney, it being in the nature of a legacy ?