Simmons v. . Fleming

Allen, J. Tbe controversy between tbe plaintiffs and defendant is almost entirely one of fact, and tbe jury has found adversely to tbe defendant. Tbe defendant, who was 79 years of age, was examined as a witness, and upon cross-examination made confusing and contradictory statements as to tbe time when be executed tbe deed to bis son. Tbe defendant then offered tbe deed to tbe son for tbe purpose of showing its date, and upon objection it was excluded. Tbe date of tbe deed was an immaterial inquiry, as it was admitted that it was registered after tbe filing of tbe complaint in this action. In Collingwood v. Brown, 106 N. C., 364, it is held that in actions to recover land tbe filing of tbe complaint, in which tbe property is described and tbe purpose of tbe action stated, operates as a Us pendens, and that as against tbe plaintiffs tbe title of a purchaser from tbe defendant begins from tbe date of tbe registration of bis deed. If, however, tbe date of tbe deed was material, tbe defendant bad tbe full benefit of tbe evidence. Tbe son of tbe defendant was a witness and testified that tbe deed was made 23 July, 1909, and there was no evidence to tbe contrary. Tbe question asked this witness on cross-examination^ as to •whether be was willing to stand or fall with bis father in tbe *392 suit, was for tbe purpose of showing Ms interest, but in any event bis answer, “I don’t know whether I understand you,” could not have affected the verdict. The defendant offered evidence to show that the land was bought with the money of Jane Simmons, and that she made the deed to him in consideration of his promise to support her, and that he had complied with his agreement. . In reply, the plaintiffs were permitted to prove, over the objection of the defendant, that he had cut the larger part of the timber on the land. No damages were recovered, but we think the evidence competent as a circumstance corroborative of the evidence of the plaintiff that the defendant accepted his deed with knowledge that the land had been bought with the money of the testator. If he was stripping the land of its timber, it might well be argued that he was doing so because he knew he had no just claim, and that he might make what he could, before being held to account. The remaining exception is to the modification of the following instruction by striking out the word “money.” “Property, the use of which naturally consumes it, such, for instance, as wine, corn, sheep, cattle, and money, when conveyed by will to 'the use of one for life, passes to the life tenant the right to consume such property absolutely.” If the instruction contained a correct statement of the law, it had no application to the evidence, which did not tend to prove ’that the money had been consumed, but that it had been invested in the land. The rule seems to be that, whenever personal property is given, in terms amounting to a residuary bequest, to be enjoyed by persons in succession, the interpretation the court puts upon the bequest is that the persons indicated are to enjoy the same in succession; and in order to give effect to its interpretation, the court, as a general rule, will direct so much of it as is of a perishable nature to be converted into money by the executor, and the interest q>aid to the legatee for life, and the principal to the person in remainder (Ritch v. Morris, 78 N. C., 377), but when the bequest is specific and is not of the residuum, the *393 executor should deliver tbe property to the one to whom it is given for life, taking an inventory and receipt for the benefit of the remainderman. Britt v. Smith, 86 N. C., 308. ¥e conclude that there is No error.