59 N.C. 5

Worth v. . Gray

Supreme Court of North Carolina

Decided December 5, 1860

Supreme Court of North Carolina · decided 1860-12-05

Relies on Miller v. . Justice · Mebane v. . Mebane · Shinn v. . Smith

Decided 1860-12-05

¶1Demurrer overruled without costs, and without prejudice.

¶2Cited: Shinn v. Smith, 79 N.C. 313; Mebane v. Mebane, 80 N.C. 39;Miller v. Justice, 86 N.C. 30. *21

¶3(12)

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Case posture

Posture: CAUSE transmitted from the Court of Equity of RANDOLPH. The bill alleges that on 13 August, 1809, in contemplation of a marriage, then about to be solemnized between the defendant Alexander Gray and Nancy Parke, widow, articles of agreement, of three parts, were made and entered into between the said Alexander Gray and the said Nancy Parke, and one Solomon K. Goodman, therein named as trustee, the material portion of which is as follows: That whereas, a marriage is shortly intended to be solemnized between the said Alexander Gray and Nancy Parke, with whom the said Alexander Gray is to have and receive all such property, both real and personal, as the said Nancy is now possessed of, or may hereafter be possessed of, in consequence of any lawsuit which now is or hereafter may be brought for the recovery of any moneys or property to which she is entitled; it is, therefore, covenanted and agreed between the said parties to these presents in manner and form following: First, that the said Alexander Gray, for himself, his heirs, executors or administrators, doth covenant and agree with the said Nancy Parke and Solomon K. Goodman, their heirs and assigns, that they, the said Alexander Gray and Nancy Parke, his intended wife, in case the intended marriage be solemnized, by some good and sufficient conveyance in law, shall settle and assure all such property, whether real or personal, whereof (6) she, the said Nancy, is seized as aforesaid, to the use and behoof of her, the said Nancy, and her friend and agent, Solomon K. Goodman, for her use and benefit during her natural life, and the said Alexander Gray doth, by these presents, covenant and agree that Solomon K. Goodman, the agent or trustee aforesaid, shall have full power and authority, by the advice and counsel of the said Nancy, to prevent the said property from being sold or wasted, and doth further covenant and agree that the said Nancy Parke, his intended wife, shall have full power and authority over the said property, and may, at any time, give or convey any part of the same to her relations, and shall have full power by these presents, by will or otherwise, to dispose of the whole of the same to her friends and relations at her death: Provided, nevertheless, that if the said Nancy shall have children by the said Alexander Gray, she shall not dispose of the said property so as materially to injure them; and in case the said Alexander Gray shall first die, it is on his part, by these presents, covenanted and agreed that the said Nancy, his intended wife, shall hold by herself and the authority of her said agent all such real or personal property as she now is entitled to, and in case the said Alexander Gray should depart intestate, that the said Nancy shall, in addition to her own estate, have, hold, possess and enjoy a distributive share of him, the said Alexander Gray. That the whole of these articles are in the handwriting of General Gray, except the signature of Mrs. Gray and the trustee, and one Harry Burrow, the subscribing witness; that Goodman was the brother-in-law of Mrs. Gray, and Burrow, the witness, her brother; that said Goodman retained the said marriage articles in his possession until he removed to the State of Tennessee about thirty years ago, when he committed them to the safe keeping of one Kennedy, who, after holding them for many years, transmitted them to Stephen Moore, who delivered them to the plaintiff, who caused them to be duly proved and registered in the county of Randolph. That the said intended marriage was solemnized, and in 1810 a child was born of the marriage, to wit, Mary, who subsequently, at about the age of twenty, was married to the said Stephen Moore, (7) of Hillsboro; that in 1852 or 1853 she, with her husband, removed to the State of Arkansas, and there died, and at May Term, 1860, of Randolph County Court, the plaintiff, worth, took out letters of administration on her estate. That General Gray never made any deed or assurance as stipulated in the marriage articles, and that his wife, the said Nancy, died in 1818 or 1819, without making any will, and without ever having disposed of any of the property owned by her at her marriage; that General Gray married a second wife some five years afterwards, by whom he had several children, whose names are set out in the bill, and who are made defendants. The bill sets out the nature and quality of the property owned by the said Nancy, and which he was possessed of by virtue of his marriage, and the articles aforesaid, consisting of land and a large number of valuable slaves; that Moore and his wife sold to Gray the reversion in the land after the expiration of his life estate. The plaintiff, by his bill, insists that the effect of these articles was to limit the use and benefit of the property to the said Alexander Gray, during the joint lives of him and his wife, and after the death of the latter, then to their daughter, the said Mary, absolutely, and that at any time after the birth of the said Mary, she (the mother) might have insisted on conveyances to that effect, saving the power of a disposition to a moderate amount in favor of her friends and relations during her (the mother's) life, and that the plaintiff, as the administrator of the said Mary, is entitled to an account of all the personal estate upon that basis. The bill sets out that the personal property aforesaid was taken into possession by the said Gray, and ever since has been treated, used and enjoyed as his own absolute property, or has been disposed of for his own benefit; that of the slaves, several were given to his children, who are made defendants, and are called on to account for the same; that within a year or two before filing the bill, the said Stephen (8) Moore called his attention to the said marriage articles; he seemed to have forgotten them, and at first denied their existence, but when produced, he admitted their genuineness, and stated that it had always been his intention that the property of Mary's mother should be given to her (Mary) and her children; and at one time it was agreed between the said Moore and the said Gray that the matter should be referred to the arbitrament of counsel, or to compromise the same themselves; but on the next day Gray expressed a desire that the matter might be settled by a bill in equity, and refused to account in any other manner. The prayer of the bill is for an account of the slaves and their hires and profits. The defendants demurred; there was a joinder in demurrer, and the cause being set down for argument, was sent to this Court.

Source: CourtListener

Court

Supreme Court of North Carolina