James Iredell, Reports of Cases in Equity Argued and Determined in the Supreme Court of North Carolina, Volume 7, Raleigh, 1851; pp.276-282

Supreme Court August Term 1851

JAMES ALLEN AND WIFE vs. L B. BRYANT AL. Adm'b. &e

Dealings between a trustee and a cestui que trust, in reference to the trust fund, are not prohibited: but are watched in this Court with great jealousy, and the trustee is required to shew affirmatively, that the dealings were fair and for a reasonable consideration, so as to exclude all suspicion that any advantage was taken of the influence, which the relation in most cases creates.

The cases of Turnage y Turnage, 7 Ire. Eq. 127, and Boyd v Hawkins, 2 Dev. Eq. 195, cited and approved. Appeal from the Court of Equity of Rutherford County, Spring Term, 1851, his Honor, Judge Settle presiding. Bynum, for the plaintiffs. Gaither, J. and Cr. W. Baxter, for the defendants.

Pearson, J. The plaintiff, Mrs. Allen, was the widow of Ambrose Mills, who died in 1848, leaving a will, by which he bequeaths as follows:

"Thirdly: I give to my beloved wife the right and privilege of residing in my mansion house, together with the use of a sufficient quantity of adjoining land to support her well and comfortably during her life, (and if she desires it, to have one third of my lands laid off to her during her life.) But it is my wish, that the whole of my lands, intended for her support, should be in the possession and.under the control and management of my son William, as it is to be his after death, by satisfying and supporting her. I also give her a negro girl Maria absolutely; also old Grey and Milly, his wife, and Maria's four children, Button, Larkin, Mack and George, and the following stock, to wit: two horses, four cows and calves, ten sheep and twenty hogs, to be selected by her out of the stock in hand, during her life, and, at her death, the stock to be equally divided between, &c, " and Button, Larkin, Mack and George, to be divided between,1' &c By another clause he gives her two beds and furniture, and a bureau; and he devises the *home place and the lands adjoining to his son William E. Mills, "subject to the support of his mother for life, as before provided."

William E. Mills waa appointed executor. He qualified and assented to the legacies. In January, 1849, Mrs. Mills and William E. Mills executed the following deed:

"STATE OF NORTH CAROLINA—Polk County. "This agreement made and entered into this, 1st day of January, 1849, between Ann F. Mills of the one part, and William E. Mills of the other part, witnesseth: That, whereas, by the provisions of the last will and testament of Ambrose Mills, deceased, the said William is to have the possession and control of the real and personal property left to the said Ann F. (or Nancy, as she is called in the will,) his mother, by supporting her well and comfortably during her life, now it is agreed by the said William and Ann for the mutual benefit of each other, and in order that there shall be no misunderstanding hereafter by any of the parties interested—the said William will and he does hereby give up and surrender to his said mother, Ann P., two rooms in the late dwelling house of the said Ambrose for her separate use, and over which she is to have the entire management and control, and in which she is to keep her own beds and furniture. He also gives her the entire use and control of a negro girl, Maria, to wait on her, clothe herself and negro children, and to do any thing and every thing she may wish and direct. And the said William doth further agree and bind himself to support his said mother and her negroes well and comfortably during her life—that is, he is to furnish all the provisions and necessaries at his own expense, and his said mother is to come to his table as one of the family, without any trouble and expense on her part; and he is also to lurnish her with a horse to ride whenever she desires it. And the said Ann F- Mills does hereby covenant and agree on her part, for and in consideration of the foregoing stipulations, to surrender, and she does hereby surrender and give up and relinquish to the said William all the remainder of the dwelling house, lands and negroes, for the entire management and control of said property left to her under the said will; and she does also surrender unto the said William all her part of the stock absolutely to manage and do with as he pleases, the said William being bound as before stated, to support his mother well during her life or so long as they may live together. And we, the said Ann F. and William E. do hereby bind ourselves to each other, our heirs, executors and administrators, well and truly to perform the foregoing covenants and agreements. In witness whereof, we have herewith set our hands and seals, the day and date above written. "ANN F. MILLS, [seal.] "WILLIAM E. MILLS, [seal.]

The parties acted under this deed until August, 1850, when William E. Mills died, leaving him surviving a widow and three infant children, who are defendants, and leaving a last will and testament, by which he gives his estate to his widow and children. The will was duly proven, and the defendants, Bryan and Mills, were appointed administrators with the will annexed. Soon after the death of William E., the plaintiff, Mrs. Mills, intermarried with the other plaintiff, Allen, and a controve:sy arising as to the legal effect of the deed, this bill was filed. The plaintiffs insist, that the intent of the deed was to make a mere temporary arrangement, by which to define the rights of the parties, for their mutual satisfaction; which arrangement was to be revocable at the pleasure of either party, and was, as a matter of course, to be at an end upon the death of William E. Mills, whose personal service, in taking charge of, and managing, the property, and the right to "come to his table as one of the family," (the consideration which induced the plaintiff, Mrs. Allen, to enter into the agreement,) could no longer be rendered or enjoyed. And the plaintiffs insist, that, if the legal effect of the deed is to vest all of the interest and estate of Mrs. Alien in William E. Mills, as his property, the deed ought to be declared void and of no effect; because, it was executed in ignorance of her rights, was obtained by surprise and without consideration, and by the exercise of an influence growing out of the relation in which the parties stood to each other. The prayer is for an account, and a surrender and rc-conveyance of all interest or estate acquired by William E. Mills, under the deed, and an allotment of one-third of the land of her deceased husband. The defendants deny, that the deed was intended as a mere temporary arrangement, and lost its binding force and effect by the death of William E. Mills. On the contrary, they insist, that its legal effect was to vest in him, as his property, all the interest and estate of the plaintiff, Mrs. Allen, in the land, negroes and stock, to which she was entitled under the will of her former husband. They deny, that she was ignorant of her rights, surprised, or in any way unduly influenced; and they aver, that the agreement was fair and reasonable, for the consideration therein expressed. They further aver, that none of the negroes, except the woman, Maria, could have been hired for anything, Grey and his wife being very old, and the four boys being between the ages of eleven and five years; and Mrs. Allen had no means of providing for the support either of the negroes or of the stock; so that, if she had kept them, she would have been compelled to go in debt, and "would, probably, (almost inevitably,) be so deeply insolvent for their support, that she would be compelled to sell them, and leave herself without support in her old age, dependent upon the bounty of her friends. These things she often repeated to William E. Mills, and importuned him to take a conveyance of all of her property, except Maria and the two beds and bureau, and bind himself to support her; and, in purAllen e. Bryan. suance of her urgent solicitations, the deed was executed. They insist on their rights.

Replication was taken, and the cause set down to be heard.

The plaintiffs are entitled to the relief prayed for. Adopting the construction contended for by the defendants, the deed cannot in this court be set up as a bar to the plaintiffs' rights, for three reasons. First: It was executed by Mrs. Allen in ignorance of her rights. It contains a recital, that William E. Mills, by the will of Ambrose Mills, " is to have the possession and control of the real and personal property left to the said Ann, by supporting her comfortably during her life." Here is an entire mistake, so far as the personal property is concerned. Again, she supposed she had no means of supporting her negroes and feeding the stock—in fact, according to the answer, she thought she was at the point of starvation, and in danger of becoming the object of charity; whereas, by the will, she had a right to use a sufficient quantity of the land to support herself "well and comfortably;" which, of course, gave her the right to use enough of the land to keep up her establishment, and to support the hands and stock, necessary for its proper cultivation and enjoyment, as a means necessary to support herself well and comfortably.

Second: The deed was obtained by surprise and without consideration. Under the will, she had a right to reside in the mansion house, to use enough of the land to support herself and keep up her establishment. Maria was a good hand. Two of the negroes were old, but four were just becoming valuable; and she had two horses, cows, sheep, and hogs. All this she transferred, for what consideration? The use of two rooms in the mansion house, the right to sit at the table, the use of a riding horse, and the use of Maria, as a waiting maid, but Maria was to clothe herself and the four boys, her children; and William E. Mills was to support her and the negroes—" that is, he is to furnish all the provisions and necessaries at his own expense;" and is to have the use of the negroes, horses and stock absolutely. This case falls precisely under the decision of Turnage v Turnage, 1 Ire. Eq. 127. There, Elias Turnage, being entitled to some negroes, receives two of them and in consideration thereof, executes a release for all the negroes bequeathed. The Court say: "It is a clear case of surprise; being entitled to four negroes, he receives two of them and executes a receipt in full. If the two received had been other than those he was entitled to, and of more value, it might have amounted to a satisfaction; but, as they were two of the four, it is impossible to hold, that it was in satisfaction of the four." It may be added, the security of the plaintiff was weakened; for, she gave up a charge on the land and accepted instead thereof, a personal covenant, and put it in the power of William E. Mills, to convey the land free of the charge. Third: The relation of the parties—that of trustee and cestui que trust—is a conclusive reason. Dealings between a trustee and cestui que trust, in reference to the trust fund, are not prohibited, but are watched in this Court with great jealousy, and the trustee is required to show affirmatively, that the dealing was fair and for a reasonable consideration, so as to exclude all suspicion, that any advantage was taken of the influence, which the relation in most cases creates; Boyd v Hawkins, 2 Dev. Eq. 195.

We are also of opinion, that nothing has been done amounting to an election on the part of Mrs. Allen. The deed certainly cannot have that effect. She conveys her interest in general terms, so as to pass the right to one third of the land, or the right to a support, which was charged on the land; which made election unnecessary.

The plaintiffs are entitled to one third of the land allotted to them for the life of Mrs. Allen, (she having by the bill made an election to have the land,) and to have the negroes surrendered to them, and to an account of the profits ol' the third of the land and of the negroes, from the death of William E. Mills; and also to an account of the value of the horses, cattle, sheep, and hogs, at the date of the deed, with interest upon such value from the death of said Mills, up to which time the agreement was acted on, and Mills was entitled to the use of the property, and the increase of the stock.

Per Curiam. Decree accordingly.

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Reports of Cases Decided in the Supreme Court of the State of Georgia at the March Term 1905, Volume 123 By Georgia. Supreme Court pp.43-47

JANES et al. v. DOUGHERTY, administrator. I. A will with only two witnesses is absolutely void as a muniment of title to realty in this State; and a judgment of probate can not give it any validity. 2. While a party may be estopped, under certain circumstances, from asserting the invalidity of a will, there was nothing in the present case which would Q . authorize a finding that such an estoppel had arisen in favor of the plaintiffs against the defendant. 3. There was no error in any of the rulings on evidence, which were complained of; and the court did not err in granting a nonsuit. Argued April 22,— Decided May 13, mos. Complaint for land. Before Judge Bartlett. Floyd superior court. November 28, 1904. The petition alleged, in substance: Ambrose Mills died in North Carolina, and his will, which was executed according to the laws of that State, was duly probated and admitted to record there in 1849. He thereby devised to his daughter, Jane A. King, certain town lots in Rome, Georgia, one of which is the land sued for, to be held by her “during her life, for the use and support of herself and children, and at her death said property . . to be equally divided among the heirs of her body." She caused a copy of the will to be recorded in the office of the ordinary of Floyd county in 1859, and took possession of the property as devisee for life, claiming no other interest in it. The defendant is in possession of it, claiming that he purchased her life-interest. He had notice of the will when he bought this interest and before he bought any remainder interest in the property. Although the will is attested by only two witnesses, he is estopped» to deny its validity as to the remainder interests. Jane A. King died in 1890. Some of the plaintiffs are her children, and the others are children of certain of her children who died in her lifetime. They “claim said lot and rents of the same as devisees under said will, and not as heirs of said Jane A. King.” At the trial some of the plaintiffs withdrew from the case. From the evidence introduced by the plaintiffs it appeared, that Ambrose Mills exercised acts of ownership over the lot in question, and that after his death Jane A. King took possession of it and claimed an interest in it under his will. She had eight children, and during her life, at different times between 1871 and 1880, the defendant obtained conveyances of the interests of seVen of them. The other died in the lifetime of the mother. Their deeds described these interests as undivided remainder interests, to take effect after the expiration of the-life-estate of Jane A. King. In 1880 Jane A. King, by a deed which recited that the remainder interests were in her children, conveyed to the defendant what was described as her “lifeinterest, and no more," in the lot in question. None of the deeds referred to the will of Ambrose Mills or indicated how the lifeestate and remainder interests were created. ' A certified copy of the will of Ambrose Mills and of the probate proceedings in North Carolina, which was offered in evidence by the plaintiffs, was excluded by the court, on objection, on the ground that the will, having only two witnesses, was invalid in this State. The court excluded, as incompetent, the record of the will and of the North Carolina probate proceedings, as made in the office of the ordinary of Floyd county. The plaintiffs offered in evidence certified copies of the inventory and sale bill of the property of William E. Mills, “showing the disposition of the personal property . . willed him by his father, Ambrose Mills," also a certified copy of the will of William E. Mills, showing the disposition of lands, in North Carolina, devised to him by his father. On objection these documents were excluded as irrelevant. The court granted a nonsuit. The plaintiffs excepted to each of the rulings stated. Seaborn (f: Barry lVrz'ght, Dean 6}: Dean, and W'. W. Mandy, for plaintiffs. Alexander d1: Hillyer, for defendant. , COBB, J. A will executed in the presence of only two witnesses is inoperative to pass title to land in this State. The will is void as a muniment of title, the judgment admitting it to probate is a nullity, and no mere lapse of time will prevent one from urging the invalidity of the will and the probate. See Janes v. Cherokee Lodge, 110 Ga. 627, in which the will involved in the present case was adjudged to be inoperative; Former v. Wiggins, 121 Ga. 26, and cit.; Castens v. Murrar , 122 Ga. 396. Connsel for the plaintiffs in error practically concede that they can not rely upon the will of Ambrose Mills as a muniment of title, but claim that the defendant and those under whom he claims are estopped from urging its invalidity. Persons‘ interested in property which a void will purports to dispose of may be so situated that they will not be heard to urge the invalidity of the will. It is therefore to be determined whether in the present case the defendant, or Jane A. King, or her children under whom he claims would be estopped from asserting the invalidity of the will as against the plaintiffs. The plaintiffs expressly claim as devisees under the will, relying upon this estoppel. They in terms disclaim any interest in the property as heirs of Jane A. King. If the proof fails to show that they have a right to recover upon the theory of estoppel, then the nonsuit was proper, without reference to what may have been their rights as heirs at law of Jane A. King. Estoppels must be mutual. Therefore Jane A. King and the defendant would each be estopped as against the other from asserting that any greater interest than a life-estate passed under the deed made by her to the defendant. But the recitals in this deed as to the interests of her children would not of themselves operate as an estoppel upon either party, unless one or the other acted upon them to his prejudice. So with the deeds from the children of Jane A. King to the defendant. Each would be estopped from asserting that any greater interest than a remainder in fee, subject to a life-estate in Jane A. King, passed under the deeds. But the recitals in the deed of one child would in no event operate as an estoppel upon another child who had made a similar deed, although there might be an estoppel as to the interest to which the deed refers. But in none _of the deeds is any reference made to the will of Ambrose Mills, or to any other instrument which it is claimed creates the lifeestate and remainders in the different conveyances. The grantors may have intended by these deeds to deal with the title as having been derived under the will of Ambrose Mills, but there is nothing to indicate that the defendant so intended. The grandchildren of Jane A. King, who are plaintiffs, had no transactions whatever with the defendant in reference to the property, and they have not changed their situation on the faith of any recitals in the deeds from the children of Jane A. King; and there can certainly be no estoppel in favor of the grandchildren which would prevent the defendant from urging the invalidity of the will under which they claim. He did buy from her daughter, Jennie Messenger, one of the plaintiffs, but for the reasons above stated there would be no estoppel in that plaintiff’s favor against him. The defendant was willing to purchase the life-estate of Jane A. King, and it was immaterial to him how this estate was created, whether by a person from whom she derived title, or whether it was an estate of her own creation. So he was willing to purchase from the children what they described as a remainder interest, and it was immaterial to him how this estate was created, 'or whether it existed at all, so long as he obtaineda conveyance which would estop them from asserting any future interest in the property. There is nothing in the present record to make a case where parties have dealt with property as having been disposed of by an invalid will in such a way that they are estopped from denying the validity of the will. The plaintiffs have no right to recover, as the will which they relied upon as a muniment of title is absolutely void. The manner in which William E. Mills dealt with the property derived from his father’s estate was immaterial to the present investigation, and the evidence offered in relation to the same was properly rejected. There was no error in rejecting the will of Ambrose Mills, nor in granting a nonsuit. Judgment afirmed. All the Justices concur, except Candler, J., absent. ‘

• Reference: MyHeritage Family Trees - SmartCopy: Jun 8 2018, 2:05:45 UTC

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Will Proven Feb 1849

17 Oct 1845. recorded. Feb Court 1849

I, AMBROSE MILLS, of Green River, being of sound disposing mind and memory. first I desire all my just debts be paid, for this purpose I set aside nine negroes to be hired out to wit, Patrick, Perry, haarvy, Jeff, Aramster, Bensonn, Ben, Guy and lucus. Then the said negroes to be divided between my three children to wit. JANE ANN the wife of JONAS KING, WILLIAM E MILLS, & MARY AMANDA the wife of ADOLPHUS MILLS. I give unto my beloved wife NANCY MILLS the right and privelege of residing in my mansion house, with land to support her during her life. I wish the whold of my land be under the management of my son WILLIAM, as it is to be his after her death. I also give unto my wife negroes, Mariah, Old Guy and Milley his wife and Mariah children Butler, Larkin, Frank George. Stock (named) during life time then to his chidlren Except the four children of Mariah they are for his grand chidlren to wit AMBROSE MILLS the son of WILLIAM E, AMBROSE WALTER the son of my daughter AMANDA, AND WILLIAM AMBROSE WASHINGTON KING the son of my daughter JANE. I give unto my daughter JANE the wife of JONAS KING four lots in the town of Rome, Ga. they being formerly belonging to my son THOMAS and since bought by my son WILLIAM. lots to be purchased from WILLIAM by my estate, also the following negroes, Nance and her children Anay, Harriet, Minty, Mitchell and Rachel and her child July Ann. I give unto my son WILLIAM all land on Green River, with the home place, with negroes to wit. Little Sam, Ester and her children Ellis and Tom and her youngest child Milly, Gusta and Mary. I give unto my daughter MARY AMANDA the wife of ADOLPHUS MILLS all land on North Pacolet River in the county of Henderson, also negroes big Sam and his wife Judy, Aggy and her children Eliza and James and Young Judy and her child Luciesa. I appoint my son WILLIAM E MILLS my sole executor. No witnesses. Signed: AMBROSE MILLS or A. MILLS

cODICIL: Whereas I, AMBROSE MILLS, of Polk County, present this as a codicil to my will of 17 Oct 1845. This 28 Oct 1848. I hereby despose of two negroes bought since my will was made, named Nelson and Andrew. I give to my son WILLIAM the negro named Nelson and to my daughter MARY AMANDA the negro Andrew. Wit: James Morris, Sadon Pog

                           Signed: A. MILLS

(recorded page 182 of Rutherford County NC deeds...found in book Rutherford County, North Carolina Wills and Miscellaneous Records 1783-1868)