Volume 274 — North Carolina Reports

1. Trusts 18, 17 — resulting trust — oral agreement by grantee in a deed to hold land in trust Where the grantee in a deed promises at or before acquiring legal title to hold the property conveyed for the benefit of a third person, or<page_number>Page 204</page_number> declares that he will hold the land in trust for such third person, a valid express trust is thereby created even though the deed contains no provision with reference to any right of such third person; such trust may be established by parol evidence which is clear, strong and convincing. 2. Wills 2 — contract to devise to third party beneficiary An agreement that a third party beneficiary shall have land at the death of the promisor implies his promise to devise or convey the property so as to effectuate the contract between the promisor and the promisee. 3. Trusts 10; Wills 40 — trust beneficiary having general power of appointment by will — possible appointees Where the income beneficiary of a trust is given a general power of appointment to dispose of the corpus of the trust by her will as if she owned the corpus free of the trust, she may devise the property to her own estate or to any persons or institutions of her choice. 4. Wills 64 — definition of equitable election An election, in equity, is a choice which a party is compelled to make between the acceptance of a benefit under a written instrument and the retention of some property already his own which is attempted to be disposed of in favor of a third party by the same paper. 5. Wills 64 — purpose of doctrine of equitable election The doctrine of equitable election rests upon the principle the one claiming under any document shall not interfere by title paramount to prevent another part of the same document from having effect according to its construction. 6. Wills 64 — purpose of doctrine of election as applied to wills The doctrine of election as applied to wills is based on the principle that one cannot take benefits under the will and at the same time reject its adverse or onerous provisions. 7. Wills 64 — doctrine of elections applied to wills The doctrine of election applies where a will purports to dispose of property belonging to the beneficiary and, inferentially, to bequeath or devise other property in lieu of it. 8. Wills 64 — doctrine of election applied to wills An election is required only when the will confronts a beneficiary with a choice between two benefits which are inconsistent with each other. 9. Wills 64 — doctrine of election applied to wills The doctrine of equitable election applies when a testator purports to devise specific property not owned by him to a person other than the true owner and provides other benefits for the owner of such specific property, but the doctrine does not apply if it appears that the testator erroneously considered the specific property devised to be his own. 10. Wills 64 — doctrine of election — choice between property devised and property testatrix had contracted to devise Where testatrix devised to third persons specific property which she allegedly held in trust for plaintiff and which she allegedly contracted<page_number>Page 205</page_number> to devise to plaintiff, and testatrix exercised a general power of appointment in devising to plaintiff a fee in other property in which plaintiff would have taken an equitable life estate under a trust if testatrix had not exercised her power of appointment, testatrix' will requires plaintiff to elect between the property devised to him and the property testatrix had contracted to devise to him. 11. Wills 64 — intent to put devisee to an election may be inferred from dispositions in the will It is not required that testator spell out his intention to put a devisee to an election when the nature of his dispositions manifest that intent. 12. Wills 64; Insane Persons 10 — doctrine of election enforceable against one under disability The doctrine of election can be enforced against persons under disability. 13. Wills 64 — election implied from devisee's dealings with property devised Where testatrix devised specific property to third persons in breach of her contract to devise the property to plaintiff, but in lieu thereof testatrix devised under a power of appointment a fee to plaintiff in other property in which plaintiff would have had an equitable life estate under a trust if testatrix had not exercised her power of appointment, plaintiff implied an election to accept the fee devised to him by (1) obtaining a judgment declaring that he owned the property devised to him by testatrix in fee, freed of the trust, (2) obtaining a judgment awarding him a portion of the rents accruing from the property devised to him during the year of testatrix' death and accepting such rents, and (3) failing to contend that he had not accepted the devised property in an action brought against him by testatrix' personal representative to recover the federal estate tax attributable to the property devised to him by testatrix. 14. Wills 64; Insane Persons 4 — guardian of incompetent cannot make election for ward without court approval The guardian of an incompetent cannot make an election in behalf of the ward to take under or against a will without the direction and approval of a judge of the Superior Court. 15. Wills 64; Insane Persons 4 — election for one under disability — petition of guardian — hearing by court — appointment of special master — order by court When an election is required of one under disability, upon petition of the guardian or other interested party, the judge will hear evidence sufficient to enable him to determine which election is in the ward's best interest, and if he deems it necessary the judge may appoint a special master to take an account, hear evidence, and report his findings to the court; the judge will then make findings of fact and enter an order directing which election the guardian shall make. 16. Wills 64 — election between devise and unadjudicated claim When a beneficiary is required to elect between a devise or bequest and property devised to a third person to which he has an unadjudicated claim, the devisee-claimant is not required to elect until his claim has<page_number>Page 206</page_number> been adjudicated in his favor, but the obtaining of a judgment establishing title in the claimant constitutes his election to take the property for which he sued. 17. Wills 64; Insane Persons 4 — election by incompetent between devise and unadjudicated claim — permission by court to pursue claim When an incompetent beneficiary is required to elect between a devise and property devised to a third person to which he has an unadjudicated claim, the guardian of the incompetent beneficiary must secure the consent of the court before proceeding with an action to adjudicate the ward's claim. 18. Parties 3, 8 — action to establish trust in devised lands — joinder of additional beneficiaries In an action to establish a trust in lands allegedly devised to defendants in breach of testatrix' contract to devise the property to plaintiff, his brother and sister, plaintiff's brother and sister should be made parties so that defendants' title to the property may be adjudicated in one suit. 19. Parties 3; Descent and Distribution 1; Executors and Administrators 6 — action to establish trust in devised lands — executors not proper parties In an action to establish a trust in lands allegedly devised to defendants in breach of testatrix' contract to devise the property to plaintiff, his brother and sister, the testatrix' executors are not proper parties since the title to land of decedents does not vest in their executors but vests in their heirs at law or devisees.

1. Statutes 7 — construction of amendments — presumptions of legislative intent In construing a statute with reference to an amendment it is presumed that the legislature intended either (1) to change the substance of the original act or (2) to clarify the meaning of it. 2. Statutes 7 — construction or amendments — presumptions as aid to interpretation Although the conclusion is that every amendment to an existing statute had a purpose, the presumption that a departure from the old law was intended is merely an aid to interpretation, not an absolute rule.<page_number>Page 257</page_number> 3. Statutes 7 — amendment of ambiguous statute — presumptions Whereas it is logical to conclude that an amendment to an unambiguous statute indicates the intent to change the law, no such inference arises when the legislature amends an ambiguous provision. 4. Mortgages and Deeds of Trust 32 — deficiency judgments — G.S. <cross_reference>45-21.38</cross_reference> — applicable only to mortgage securing vendor As originally enacted, the provisions of G.S. 45 21.38, which barred recovery of deficiency judgment on purchase-money notes secured by a mortgage or deed of trust if the note disclosed that it was for purchase money of real estate, are held applicable only to purchase-money mortgages and deeds of trust given by the vendee to the vendor and not to a note and deed of trust securing a third party who lent the vendee the purchase price of the land described in the deed of trust. 5. Mortgages and Deeds of Trust 32 — G.S. <cross_reference>45-21.38</cross_reference> — effect of 1961 amendment The 1961 amendment to G.S. <cross_reference>45-21.38</cross_reference>, which made the section applicable only to mortgages and deeds of trust given "to secure to the seller the payment of the balance of the purchase price of real property," did not change the original meaning of the statute; it merely made specific that which had theretofore been implicit.

1. Criminal Law 92 — joint trial of defendants It has been a general rule in this State that whether defendants jointly indicted would be tried jointly or separately was in the sound discretion of the trial court, and, in the absence of a showing that a joint trial had deprived the movant of a fair trial, the exercise of the court's discretion would not be disturbed upon appeal. 2. Criminal Law 95 — admissibility of confession implicating codefendants — old rule Prior to the decision in Bruton v. United States, <cross_reference>391 U.S. 123</cross_reference>, the rule in this State was that the admission of the extrajudicial confession of one codefendant, even though it implicated another against whom it was inadmissible, was not error, provided the trial judge instructed the jury that the confession was evidence only against the confessor and must not be considered against another. 3. Criminal Law 74 — valid confessions — best evidence of guilt A confession legally obtained is clearly competent against the defendant who made it and is the best evidence of his guilt. 4. Constitutional Law 31; — Criminal Law 95 — admissibility of confession implicating codefendant — denial of confrontation right Under the decision in Bruton v. United States, <cross_reference>391 U.S. 123</cross_reference>, which is binding in this jurisdiction and is to be applied retroactively, the admission in a joint trial of nontestifying defendant's extrajudicial confession which implicates his codefendants is a violation of the codefendants' right of cross-examination secured by the confrontation clause of the Sixth Amendment, even though the court instructs the jury that the confession is admissible only against the declarant; if, however, the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. 5. Constitutional Law 31 — right of confrontation — obligatory on the States The Sixth Amendment's right of an accused to confront the witnesses against him is a fundamental right and is made obligatory on the States by the Fourteenth Amendment. 6. Criminal Law 92 — joint trials — duty to exclude confession implicating codefendants As a result of the decision in Bruton v. United States, <cross_reference>391 U.S. 123</cross_reference>, which renders inadmissible the confession of a nontestifying defendant which implicates his codefendants, the trial court in a joint trial of defendants must exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant; failing this, the State must choose between relinquishing the confession or trying defendants separately.<page_number>Page 278</page_number> 7. Criminal Law 75 — admissibility of confessions — pre-Miranda tests Although admissibility of confessions in this homicide prosecution was not dependent upon whether defendants were given the warnings specified in Miranda v. Arizona, <cross_reference>384 U.S. 436</cross_reference>, the question remains whether the confessions were freely and voluntarily given and whether the officers employed the procedural safeguards then applicable. 8. Criminal Law 75 — confessions — voluntariness rule An extrajudicial confession of guilt by an accused is admissible against him only when it is voluntary. 9. Criminal Law 75 — confessions — test of voluntariness — suggestion of hope or fear When an investigating officer offers some suggestion of hope or fear to one suspected of crime and thereby induces a statement in the nature of a confession, such statement is involuntary, and hence incompetent as evidence. 10. Criminal Law 76 — confessions obtained by promise or threat — question of law Whether conduct of investigating officers amounts to a threat or promise which will render a subsequent confession involuntary and incompetent is a question of law reviewable on appeal. 11. Criminal Law 76 — multiple confessions — admissibility The State offered in evidence two confessions by a defendant. Upon the voir dire the evidence was that the first confession was made after a police officer had told defendant (1) that it would be better for him in court if he told the truth and (2) that he might be charged with the lesser offense of accessory to the homicide rather than as a principal. Two days later, upon being told that he could "make a voluntary statement," defendant made the second confession to two other officers who did not know of the previous statement. Held: The language of the original officer constituted a suggestion of hope which rendered both confessions involuntary and incompetent. 12. Criminal Law 76 — admissibility of subsequent confession — presumptions Where a confession has been obtained under circumstances rendering it involuntary, a presumption arises which imputes the same prior influence to any subsequent confession, and this presumption must be overcome before the subsequent confession can be received in evidence. 13. Criminal Law 75 — pre-Miranda confession — request for counsel In prosecution begun after the decision in Escobedo v. Illinois, <cross_reference>378 U.S. 478</cross_reference>, but before the decision in Miranda v. Arizona, <cross_reference>384 U.S. 436</cross_reference>, if the defendant, after requesting an attorney, was not given an opportunity to confer with him prior to making his confession, the confession is inadmissible in evidence against him. 14. Criminal Law 76 — confessions — voir dire — duty to make findings of fact Where the evidence of the State and the defendant upon the voir dire<page_number>Page 279</page_number> was sharply conflicting as to whether defendant had requested an attorney before or after making a confession, the failure of the trial judge to make a finding of fact with respect to this material point is error and warrants a new trial.

1. Master and Servant 79 — dependency requirement of G.S. <cross_reference>97-2</cross_reference> (12) The words "dependent upon the deceased" in G.S. <cross_reference>97-2</cross_reference> (12) refer to a legal, not an actual, dependency. 2. Master and Servant 79 — acknowledged illegitimate child — failure of father-employee to support Where the deceased employee acknowledged the paternity of an illegitimate child and contributed to its support, his discontinuance of support for the child did not work a forfeiture of the child's right to participate in benefits under the Workmen's Compensation Act resulting from the death of the employee-father, since his legal responsibility to support the child continued. 3. Master and Servant 79 — length of status as child for compensation purposes When an illegitimate child qualifies as a child for compensation purposes, that status continues until the child becomes 18 years of age or marries before reaching that age. 4. Master and Servant 79 — when child loses right to share in compensation A legitimate or acknowledged illegitimate child loses its right as a<page_number>Page 357</page_number> child to share in compensation benefits (1) by reaching the age of 18 years, whether married or single, or (2) by marriage before 18 unless after marriage the child continues wholly dependent upon the parent. G.S. <cross_reference>97-2</cross_reference> (12). 5. Master and Servant 47 — construction of Workmen's Compensation Act The Workmen's Compensation Act should be liberally construed to the end that benefits may not be denied on narrow or technical grounds. 6. Master and Servant 79 — acknowledged illegitimate child — employee not supporting at his death — right to compensation An acknowledged illegitimate child of a deceased employee is entitled to share with the deceased's widow the Workmen's Compensation award due his dependents as a result of his death in an industrial accident notwithstanding the employee-father was not contributing to the support of his illegitimate child at the time of his death, the father being legally responsible for his illegitimate child, and G.S. <cross_reference>97-39</cross_reference> providing a conclusive presumption that the child is wholly dependent for support on the deceased employee father.

1. Burglary and Unlawful Breakings 5; Larceny 7 — sufficiency of evidence — "recent possession" doctrine In a prosecution upon indictment charging burglary in the first degree and felonious larceny, the State consenting to reduce the charge of first-degree burglary to felonious breaking and entering, defendant's motion for nonsuit is properly overruled when the State offers evidence that the amount and denominations of the bills found on the defendant within a few minutes after the time of the offenses were identical to the amount and denominations of the bills taken from the pocketbook of the prosecuting witness' daughter, together with testimony of the prosecuting witness identifying defendant as the person he saw in his bedroom at 2:30 in the morning going through his daughter's pocketbook. 2. Burglary and Unlawful Breakings 6; Larceny 8 — "recent possession" doctrine — instructions In prosecution on two-count indictment charging that defendant burglariously entered a dwelling house for the purpose of committing the felony of larceny and that he feloniously stole the sum of $17.00, before<page_number>Page 595</page_number> defendant's guilt may be inferred from his unexplained possession of the money, the trial court must instruct the jury to find from the evidence and beyond a reasonable doubt that the money in defendant's possession was the identical money taken from the dwelling, and its failure so to instruct is error. 3. Larceny 5 — presumption from recent possession of stolen property Evidence or inference of guilt arising from the unexplained possession of recently stolen property is strong, or weak, or fades out entirely, on the basis of the time interval between the theft and the possession. 4. Larceny 5 — presumption arising from recent possession of stolen property In order for the inference or presumption of guilt resulting from the possession of stolen property to arise, the possession, in point of time, should be so close to the theft as to render it unlikely that the possessor could have acquired the property honestly.