Pasquotank County NcArchives Court.....The Board Of Commissioners Of Pasquotank County Et Al, W. O. Temple, Administrator Of Mary A. Thomas V. 1892
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Source: N C Reports
Written: 1892

W. O. Temple, Administrator of Mary A. Thomas v. The Board of Commissioners of 
Pasquotank County et al

Evidence - Will - Devise - Laws of other States and Countries

1. The existence of the unwritten law of another State or foreign country may 
be proved by competent witnesses.

2. A will made by one domiciled in another State, and which is there subject 
to be construed by the rules of the common law, will be construed as if it had 
been made in this State, unless it is made to appear by competent evidence, 
that a different construction would prevail in the State where the testator 
resided.

3. A testator, domiciled in the State of Maryland, devised to "M., for the 
benefit of S., all of Pasquotank County, NC, the sum of $1,000, the interest 
to be paid her during her life, and at her decease M. to distribute the 
principal as her judgment may determine for the poor of the county." M. 
received the fund and paid the interest as directed, but died - leaving her 
husband surviving - without making any provision for the disposition of the 
fund after the death of S., who also soon after died. It was proved upon the 
trial that under the laws of Maryland, devises and legacies for charitable 
uses were void: Held, That upon the death of S. the fund should be paid to the 
heirs or distributees of the testator or their assigns.

This was a Civil Action heard by Shuford, J., on the 27th day of April, 1892, 
at Chambers in Plymouth, by consent, on an appeal from a decree rendered by 
the Clerk of the Superior Court of Pasquotank County.

The petitioner, W. O. Temple, as administrator of Mary A. Thomas, filed his 
petition before the Clerk of the Superior Court of Pasquotank County, praying 
an order and decree of distributions of certain funds which had come into his 
hands as administrator aforesaid. The respondents were duly served with 
summons, and each of them filed answers to the petition.

Upon the hearing the Clerk, by consent, found the facts as follows:

John A. Gambrill died domiciled in the city of Baltimore, State of Maryland, 
on the 1st day of October, 1878, leaving a last will and testament in which he 
appointed one Robert Johnston his executor, and which was duly admitted to 
probate and record in said city and State, and in the county of Pasquotank in 
the State of North Carolina.

Robert Johnston qualified as Executor under said will in the city of 
Baltimore, State of Maryland, and settled the estate of his testator, and 
discharged the several trusts set out in his will, as far as possible, in the 
State of Maryland.

The testator in one clause of his will bequeath as follows:

"I give in trust to Mrs. Mary A. Morgan, for the benefit of Mrs. Mary Scott, 
daughter of Mrs. Elizabeth Cartwright, deceased, all of Pasquotank County, 
North Carolina, the sum of one thousand dollars ($1,000), the interest to be 
paid her during her life, and at her decease, Mrs. Morgan to distribute the 
principal as her judgment may determine for the poor of said county."

Robert Johnston paid out of his said testator's estate one thousand dollars to 
Mrs. Morgan under the provision of the will. The interest was paid to Mrs. 
Scott until her death, which occurred February 25, 1887. Mrs. Morgan died 
before the death of Mrs. Scott, to-wit, in the year 1884, without disposing of 
the said fund as provided in said will, or in any wise executing the said 
power.

The plaintiff, W. O. Temple, duly qualified as administrator on the estate of 
Mary A. Thomas, who was the said Mary A. Scott above mentioned, she having 
intermarried with William Thomas, one of the defendants above mentioned, 
November 12, 1877.

The late Mary A. Thomas received the fund under the will of the late John A. 
Gambrill. J. S. McCoy and Mary Scott are his heirs at law and next of kin; 
James Scott and Emiline Sanders are devisees of Mary Scott, and William Thomas 
is the surviving husband of Mary A. Thomas, and said Scott and Sanders have 
sold and conveyed for value their interest, if any, in the fund of John L. 
Hinton.

J. S. McCoy claims two-thirds of the fund as heir at law and next of kin to 
John A. Gambrill; John L. Hinton claims one-third as assignee of James Scott 
and Emiline Sanders; William Thomas claims the entire sum as surviving husband 
of Mary A. Thomas; and the defendant, Board of Commissioners of Pasquotank 
County, claims the same under a proper construction of the will of the said 
John A. Gambrill.

John S. McCoy qualified as administrator de bonis non c.t.a. of John A. 
Gambrill on the 21st day of March, 1887, and brought suit against Guirkin & 
Co. on the 23d day of March, same year, for the recovery of the said fund.

Neither of the respondents has ever instituted a suit for the recovery of this 
fund, nor to establish their claim against Temple, or has either of them ever 
filed with the administrator a settlement of his claim before the beginning of 
this proceeding, but each made a verbal claim as set out in the petition.

The Court finds as a fact, that according to the law of Maryland the 
benevolent bequest in the will of John A. Gambrill to the poor of Pasquotank 
County is void.

The residuary clause in the said will has been declared by the Court of 
Maryland to be void.

In the case of McCoy v. Guirkin, Judge Montgomery rendered judgment, 
appointing the Commissioners of Pasquotank County trustee in the place of Mrs. 
Thomas, which, upon appeal to the Supreme Court of North Carolina, was 
dismissed, as appears by the opinion of the Supreme Court 102 NC, 21.

That if the heirs of John A. Gambrill are entitled to the fund, J. S. McCoy is 
entitled to two-thirds of same, and John L. Hinton is entitled to one-third of 
same.

That the amount in the hands of Temple, administrator of Mary Thomas, to be 
distributed, is $793.75.

That respondent Board of Commissioners of Pasquotank County excepted to so 
much of the Clerk's finding as declared the bequest in the will of John A. 
Gambrill void under the laws of Maryland, for the reason that the testimony of 
J. Heywood Sawyer, the only testimony on the point, was incompetent and 
inadmissible. The exception was overruled.

The Clerk of the Superior Court, upon the above facts, made a decree adjudging 
that the heirs at law of John A. Gambrill, or their assigns, were entitled to 
the fund, and directing the petitioning administrator to pay the fund over to 
such heirs at law and assigns, to-wit, J. S. McCoy, two-thirds thereof, and 
John L. Hinton, one-third thereof.

From the ruling of the Clerk the respondents appealed to the Judge of the 
District, who sustained the finding made by the Clerk and affirmed the order 
of payment.

From the ruling and judgment the respondents, the Board of Commissioners of 
Pasquotank County and William Thomas appealed to the Supreme Court.

No counsel for plaintiff
E. F. Aydlett for defendant

NC Supreme Court Justice MacRae, J. - The first exception was to the admission 
of the testimony of J. Heywood Sawyer, who, after stating that he is an 
attorney at law, and has been practicing in North Carolina since 1878, that in 
the course of his business connected with the subject matter of the present 
litigation, he has thoroughly examined into the law of Maryland, and thinks, 
from this examination, he is qualified to state what that law is on the 
subject, and testifies, in substance, that, by the decisions of the Court of 
Appeals of that State, devises and legacies to charitable uses cannot be 
sustained and enforced. The objection to this testimony is that it is 
incompetent and inadmissible.

The existence of an unwritten law of another State, or foreign country, must 
be proved by competent witnesses.

The other exception was to the judgment of his Honor confirming the judgment 
of the Clerk, which directs the distribution of the fund in the hands of the 
administrator between J. S. McCoy, one of the administrators, and J. L. 
Hinson, assignee of the other distributees, of that part of the personal 
estate of John A. Gambrill, deceased, as to which he died intestate, to the 
exclusion of the defendant William Thomas, who claims as the representative of 
his deceased wife Mary A. Thomas, and the Board of Commissioners of Pasquotank 
County, who claim, as trustees, to hold the fund and administer it for the 
benefit of the poor of said county.

The testator bequeath the sum of $1,000 in trust to Mary A. Morgan, for the 
benefit of Mrs. Mary A. Scott, the interest to be paid her during her 
life, "and at her decease, Mrs. Morgan to distribute the principal, as her 
judgment may determine, for the benefit of the poor of said county."

This will was made in the State of Maryland, where the testator resided, and 
where it is subject to be construed by the rules of common law. It will, in 
the Courts of North Carolina, have the same construction as if it had been 
made here, unless it shall appear by the judicial decisions, or by the 
opinions of men learned in the law, that a different construction would 
prevail in Maryland. It has been adjudged by the Court below, upon competent 
evidence, as we have seen in our examination of the first exception, that by 
the laws of Maryland this bequest is void, and the laws of the State govern 
the exposition of the testator's will, because he was there domiciled at the 
time of its execution and of his death. 

The trustee, Mary A. Morgan, who married the defendant Thomas, and died, could 
have had no beneficial interest in the fund if the bequest had been held good, 
and the defendant Thomas, her surviving husband, can have no interest in it, 
because of the failure of his wife to execute the trust in her lifetime.

It is admitted that the residuary clause in the will of John A. Gambrill has 
been declared void by the Courts of Maryland, and it is further admitted that 
the defendants McCoy and Hinton are entitled to the fund, if the same cannot 
be held by the Commissioners of Pasquotank County as trustees, or by William 
Thomas as representative of the trustee Mary A. Thomas.

The cause being now properly constituted in Court, and the parties claiming 
the fund being present in the action, so that a determination of the 
controversy will bind all, it may now be decided, as suggested in McKoy v. 
Guirkin, 102 NC, 21, "whether the bequest for the benefit of the poor is 
valid, or must return to legatees under the will, or to the testator's next of 
kin."

Judgment affirmed.

Additional Comments:
In the NC Supreme Court September Term 1892

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