Halifax County NcArchives Court.....Edwin Whitehead Et Al, Marcellus Pope & Wife Et Al V. 1873
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Connie Ardrey n/a November 9, 2011, 7:46 pm

Source: N C Reports
Written: 1873

Marcellus Pope & wife, & others v. Edwin Whitehead & others

A testator after giving his land to his wife for life devised as follows: "At 
my wife's death it is my will that my land be equally divided between my sons, 
J, E, and W, and the negroes given her (the wife), as above, are to be 
disposed of as follows: that is, each of them upon their arrival at lawful 
age, is to have an equal part of the said negroes, except my sons T and F, and 
my daughters P, B, and C," &c: Held, That the three sons named were alone 
entitled to the land.

Where a tenant in common has improved a part of the common land he is entitled 
upon the partition of the land, to have the part so improved, alloted to him 
at the original valuation.

Special Proceeding, for partition, and sale for partition, of certain lands, 
commenced in the Probate Court of Halifax County, and heard by Watts, J., at 
Chambers, January 23d, 1873.

The following facts were certified as found by the Judge of Probate, and by 
him transmitted to his Honor, with the questions of law raised thereon:

"1. That one Joseph Whitehead domiciled in Halifax County died in 1833 leaving 
a last will and testament which was proved at August Term, 1833, of Halifax 
County Court, a copy of which," &c.

2. That said testator was twice married, and had issue by his first marriage, 
who survived him; the defendants, Patsy wife of John A. Stamps, Eliza Howell 
and Thomas Whitehead, who died thereafter, leaving issue, the defendants, 
Lucy, Mary and Eliza Whitehead, also John Whitehead, who has since died, 
leaving issue the defendants, A. J. Whitehead, Mary A. Parker wife of Mark 
Parker, Louisa Cherry wife of Amos Cherry, Turner and John T. Whitehead, and 
also C. Whitehead, who intermarried with one Candy Howell, and died leaving 
issue, the defendants, Mary, Sarah, Margaret, Brinkley, Temperance and Jane 
Eliza Howell.

By his second wife, Sally, mentioned in his last will and testament, the said 
testator had issue, the plaintiffs, Sarah wife of Wm. P. Threewitts, Dorothy 
wife of Marcellus Pope, Mary wife of George W. Spivy, and the defendants, 
Edwin Whitehead and Nancy who intermarried with one Luke Howell, and died 
leaving issue, the plaintiffs, Benjamin T. Howell, and Sarah F. wife of Wm. T. 
Joyner, and Wiley Whitehead who died without leaving issue.

3. That all the lands of which said testator died seized and possessed of, was 
the tract described in the complaint, and that his wife Sally died in 
February, 1872.

4. That the defendant Edwin Whitehead in the year 1865, purchased the interest 
of the defendant, Joseph Whitehead, in said lands and became the owner thereof.

5. That said Wiley Whitehead died in September, 1845, intestate as to his 
interest in said land, and without issue.

6. That the said testator during his lifetime fully provided for his sons, and 
partially for his daughters of his first marriage, by advancements of portions 
of his estate; to the sons, both real and personal estate, and to his 
daughters only personal property; but made no provisions by advancement or 
otherwise for the children of his second marriage.

7. That the defendant, Edwin Whitehead, made permanent improvements upon said 
land, in the year 1867, by erecting a dwelling house and other buildings 
thereon, at a great expense; and that at the time of this erection the said 
defendant was under the impression that at the death of his mother, the said 
Sally, the title in fee in said lands vested in him, he having previously 
purchased the interest of the defendant, Joseph Whitehead, and the said Wiley 
Whitehead having died before his interest in the lands vested in possession, 
and that he therefore had no interest therein.

8. That the defendant, Edwin Whitehead, executor of Wiley Whitehead, dec'd, 
heretofore filed a petition in this Court, (and the same is now pending and 
undetermined therein,) to sell the interest of his said testator in said 
lands, to make assets for the payment of debts, &c.

9. That the plaintiffs and defendants are tenants in common of said land, and 
are desirous of partition of the same according to their respective interest 
therein.

10. That the above named testator, Joseph Whitehead, by his said last will and 
testament, a copy of which, &c., provided as follows: (Those parts of the will 
necessary to an understanding of the points raised are set out in the opinion 
of the Court.)

Upon the foregoing facts, the following issues or questions of law, arose:

1. The plaintiffs claim that the said testator, Joseph Whitehead, never 
intended in his said last will and testament to exclude any of the children of 
the second marriage from participation in, but intended to devise his real 
estate to his wife, Sally, for life, and then equally to all the children of 
the second marriage; that his daughters of said marriage, to-wit: Dorothy, 
wife of the plaintiff Marcellus Pope; Sarah, wife of the plaintiff Wm. P. 
Threewitts; Nancy, now deceased, and represented by the plaintiffs, B. T. 
Howell and Sarah F. Joyner, wife of Wm. T. Joyner, and Mary, wife of the 
plaintiff Geo. W. Spivey, were inadvertently and by mistake omitted from said 
last will and testament, all of which a proper construction will show. The 
plaintiffs further contend, that said tract of land above referred to, should 
be divided into seven equal shares; to one of which, the plaintiff, Dorothy, 
wife of Marcellus Pope, is entitled; one to plaintiff, Mary, wife of Geo. W. 
Spivey; one to Sarah, wife of Wm. P. Threewitts; one to defendant, Edwin 
Whitehead, in his own right, and one to him as assignee of the defendant, 
Joseph Whitehead; one to the heirs of Wiley Whitehead, dec'd; and one jointly 
to the plaintiffs Benjamin T. Howell and Sarah F. Joyner, wife of W. T. Joyner.

They further contend, that the share to which the heirs of Wiley Whitehead, 
dec'd, are entitled, should, on account of its smallness, the number of owners 
and the impracticability of actual partition thereof, be sold for partition, 
&c.

2. The defendant, Edwin Whitehead, contends, that the devise of the real 
estate of the testator, Joseph Whitehead, was in express and positive terms to 
his sons, Joseph, Edwin, (both defendants in this action,) and Wiley 
Whitehead, now deceased, after the death of his wife Sally; that by the 
provisions and upon a proper construction of said will, all other persons 
were, and it was the intention of the testator to exclude all other persons 
from any participation in his real estate after the death of his wife, Sally; 
and that the same was devised to his said sons, Joseph, Edwin and Wiley, and 
to them only, subject to the said life estate therein.

The said real estate should be divided into three shares, to wit: to two of 
which, this defendant (Edwin) in his own right and as assignee of the 
defendant, Joseph, is entitled; and the heirs of Wiley Whitehead to the 
remaining one. That in the division of the said premises, he should be allowed 
the value of the permanent improvements placed thereon, or that they should be 
embraced in the portion thereof allotted to him and at no valuation. Further, 
that the share to which the heirs of Wiley Whitehead are entitled, should not 
be divided among them, either by actual partition, or by a sale for partition, 
during the pendency of the petition of said Wiley's executor, to sell the same 
and make assets, &c.

His Honor, upon consideration of the foregoing facts, admitted and found by 
the Judge of Probate, and the questions of law arising thereon, adjudged and 
decreed:

1. That the defendant, Edwin Whitehead, is entitled to an undivided two-thirds 
in and to the real property set out in the pleadings, and that the other one-
third descends to the heirs at law of Wiley Whitehead.

2. That actual partition be made of said premises, and that the Clerk appoint 
commissioners for that purpose, and to set apart as above, two-thirds of said 
lands to said Edwin Whitehead, and one-third to the heirs at law of Wiley 
Whitehead.

And it appearing further, that Edwin Whitehead has placed certain and sundry 
improvements upon said land, under a reasonable belief, that he was the owner 
in entirety of said premises, it is adjudged, that the said Edwin Whitehead be 
allowed his reasonable valuation of said improvements in the partition; and 
that this cause be certified to the next term of any Superior Court to be held 
for the county of Halifax, to the end, that a jury may be empanelled to assess 
the value of said improvements in the manner and according to law, as in the 
statute in this case made and provided.

3. It appearing further, that the executor of Wiley Whitehead opposes the sale 
of the one-third devolving upon the heirs-at-law of his testator, and that the 
personal property may prove insufficient to pay debts; it is decreed, by the 
Court, that as to partition, or sale for partition of said one-third among the 
heirs of Wiley Whitehead, this cause is retained for further hearing, &c.

From which judgment the plaintiffs appealed.

Batchelor, Edwards & Batchelor, for appellants
Clark & Mullen, contra

NC Supreme Court Justice Rodman, J. - Two questions are made in this case:

1. Upon the construction of the will of Joseph Whitehead.

2. As to the right of a tenant in common, who has made improvements on the 
common land, to be allowed for them on a partition.

1. The material parts of the will are as follows:

"I will and bequeath to my living wife, Sally, all my lands which I may die 
seized and possessed of, and the following negroes;" (here follow the names of 
several slaves); "and also," (here follows a list of sundry articles of 
personal property.) "The above legacy is given upon the following conditions: 
At my wife's death it is my will that my land be equally divided between my 
sons, Joseph, Edwin and Wiley, and the negroes given her as above, are to be 
disposed of as follows: that is, each of them, upon their arrival at lawful 
age, is to have an equal part of the said negroes, except my sons, Thomas and 
John, and daughters Patsy, Betsy and Penny - these five children are to have 
no part of my estate, except that already given them by deed and what is 
expressly given them by this will."

He then gives legacies of negroes and personal property to his daughters Patsy 
and Betsy, and proceeds: "The negroes given to my wife upon the conditions 
named in this will are, in case of the death of either of my children, (to 
whom they are given afterwards,) dying before their arrival at lawful age, or 
without a lawful heir, to descend to the remaining living children by my said 
wife Sally."

It is contended on behalf of the daughters of the second marriage:

That when the testator, after having given the land to his three sons of that 
marriage, nomination, goes on to say that the negroes given to his wife for 
life, "shall be disposed of as follows: that is, each of them is to have an 
equal part, except the children of the first marriage." The word 'them' cannot 
refer to the three sons, because in that case the exception being of those not 
embraced in the original description would be absurd. It is contended that to 
make the exception sensible and have any meaning, we must suppose the word 
them to refer to some antecedent, more extensive than the three sons named, 
and at least as extensive as all the children of the testator; and then as the 
children of the first marriage are excepted, it would leave the devise in 
effect to read to the three sons and three daughters of the second marriage. 
Upon that construction the will would read, "that my land be equally divided 
between my three sons and all the rest of my children, except those by my 
first wife." But it must strike us that his would be a very awkward and 
unusual mode of giving the land to all the children of the second marriage. 
The sentence may as naturally be amended by striking out the word 'them' and 
inserting in lieu of it, the words "my children," except, &c., which, while it 
would leave the devise to the sons to stand as a separate sentence, would make 
a gift of the negroes to the children of the second marriage. 

Undeniably there is an obscurity in the will as it stands at present. Some 
phrase has probably been left out, or some word changed in transcribing it. 
Several conjectural emendations might be made, any of which would make the 
text sensible, but the meaning upon each would be different. All of them would 
be merely conjectural. It we were dealing with the corrupt text of a classic 
author, an exercise of our ingenuity would be, at worst, harmless. But we have 
no right to do it with a solemn will; we must take the text as it is, and put 
a meaning on it as far as we can. That part of it which gives the land to the 
three sons is clear. After that the uncertainty begins. When the girls claim 
to share the estate with the sons, the burden is on them to show some words in 
the will to authorize the claim, but this they cannot do; they are obliged to 
resort to conjecture; but we are not at liberty to deprive the sons of any 
part of the estate given to them upon conjecture. A will must be in writing 
and signed by the testator, but what the claim of the daughters is put on, is 
not in the writing. The construction cannot by varied by any supposition or 
proof of the affection of the testator to the daughters. A will may be 
inofficious, and it may appear to us capricious and unjust, but we are obliged 
to enforce it, because it is the will of one who had the right to make it. We 
cannot reform the will according to our notions. The daughters take no estate 
in the land by the will.

2. The defendant, Edwin Whitehead, took one-third of the land by devise 
(subject to his mother's life estate); in February, 1840, he bought the third 
devised of Joseph; and by the death of Wiley in 1865, he inherited one-tenth 
of his share (subject to its liability for his debts). In 1867, during the 
life of the tenant for life, he took possession of some part of the land and 
built a dwelling house and made other improvements thereon. The case states, 
that he did this under the belief that he would own the whole at the death of 
the life tenant, thinking that as Wiley had died during the life of the life 
tenant, his heirs would get nothing. If he had this belief, it was founded on 
a mistake of law, and can not benefit him. He contends that he is entitled to 
an allowance for his improvements, under chap. 147 of the Acts of 1871-1872, 
p. 225. But upon an attentive examination, it will be seen that that act does 
not apply to tenants in common. It says, in substance, that any defendant 
against whom a judgment shall be rendered for land, may, upon a petition 
stating that while holding the premises under a title, believed by him to be 
good, he made improvements, &c. In this case, there has not been, nor will be, 
any judgment against the improving tenant for land. He will, after the 
judgment, remain in possession of all he is now possessed of: the difference 
being, that he will then hold in severalty the share which he now holds in 
common. The object of the act was to introduce into the law of North Carolina 
an equity in favor of one who has purchased lands, and in the belief that he 
has acquired a good title thereto, has made lasting improvements, popularly 
called betterments. It is an equity unknown in England, but it has long been 
an accepted doctrine in the New England states and probably in some others, 
that upon eviction by the true owner, such an occupier was entitled to an 
allowance for his improvements. The particular equity seems to be confined to 
cases of this sort; but probably, vendees who enter into possession upon a 
contract for title, which being in parol is void, or where for any cause, the 
vendor cannot make title, have a like equity.

The defendant, Edwin Whitehead, also contends that on general principles of 
equity he is entitled to the allowance claimed; and we think he is. Jones V. 
Carland, 2 Jones Eq. 502, establishes, that prior to the Act of 1871-72, such 
betterments as are provided for in that Act were not then allowed in this 
state; and that the equity of a tenant in common, who had improved a part of 
the common land, to have that part laid off to him as its original value, was 
recognized. In 1 Story Ex. Jur. s. 656 b., it is said "In suits in equity also 
for partition, various other equitable rights and claims and adjustments will 
be made, which are beyond the reach of Courts of law. This is improvements 
have been made by one tenant in common, a suitable compensation will (as we 
have seen,) be made him upon the partition, or the property on which the 
improvements have been made, assigned to him. So Courts of equity will not 
(only) take care that the parties have an equal share and just compensation; 
but they will assign to the parties respectively such parts of the estate as 
would best accommodate them, and be of most value to them, with reference to 
their respective situations, in relation to the property before the partition. 
For in all cases of partition, a Court of equity does not act merely in a 
ministerial character, and in obedience to the call of the parties who have a 
right to the partition; but it founds itself upon its general jurisdiction as 
a Court of equity, and administers its relief ex sequo dt bono according to 
its own notions of general justice and equity between the parties."

A decree may be drawn, declaring that under the will the three sons named were 
alone entitled to the land; also for a partition, and directing the 
commissioners to assign to Edwin Whitehead, his share of the land so as to 
include that part on which he has made improvements, valuing it at what it 
would have been worth without the improvements, and otherwise in accordance 
with this opinion. The case may be remanded if either party desires it, so 
that a judgment may be given in the Superior Court in conformity with this 
opinion, and such further proceedings be had, &c. The defendants will recover 
costs in this Court.

Let this opinion be certified
Per Curiam
Judgment accordingly

Additional Comments:
In the NC Supreme Court January Term 1873

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