#### MELVINA WINGLER and MINDA C. LONG v. A. R. MILLER and M. C. WINGLER, Administrators of N. WINGLER, Deceased; A. R. MILLER, Individually, and T. J. PEARSON and HARRY PEARSON, Sureties Upon Administrators’ Bond.

(Filed 7 April, 1943.)

1. Trial § 37: Appeal and Error § 39f—

Where a stipulation is entered into by counsel for plaintiffs and defendants that only one issue may be submitted to the jury and the parties waive the submitting of any other issue, on appeal the Court’s consideration is limited to those exceptions and assignments of error bearing on the single issue submitted by consent.

2. Trial § 22f: Appeal and Error § 40e—

On motion for judgment of nonsuit the evidence is taken in the light most favorable to plaintiffs, who are entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.

3. Executors and Administrators § 21—

In an action by distributees of decedent against his administrators and surviving partner for recovery of money found on decedent’s person in his last illness and claimed by his partner, where the evidence tended to show that decedent for many years had carried large sums of money on his person and over six thousand dollars was found on his person at the hospital just before his death, that he had three bank accounts, including the partnership account, motion for judgment of nonsuit was properly denied.

4. Evidence § 28—

In a suit by distributees to recover from administrators and surviving partner money found on the person of intestate and claimed by his partner, the following evidence was not prejudicial to defendants: (1) Of the surgeon who found the money on deceased’s person when he entered the hospital, that it was done up in different packages and some of it looked like it had been carried for a long time, especially as this witness was allowed to give similar testimony without objection; (2) of a sister, one of plaintiffs, that decedent carried packages everywhere he went. “They were all around. I never saw what was in them. I don’t read and write”; (3) of the other plaintiff, that decedent carried large sums of money on his person for 27 or 28 years and that she saw $4,000 in his possession not long before his death, that he carried the money in pocketbooks and packages; (4) of one plaintiff, a sister, and a justice of the peace, that plaintiffs and decedent owned a boundary of timber which was sold for $2,600 cash, which the justice of the peace saw paid to decedent, and the sister (witness) received $600 for her share — this does not violate the provisions of O. S., 1795.

*5.*Evidence § 32—

In a suit by distributees to recover from administrators and surviving partner money found on the person of decedent and claimed by his partner, testimony of the partner, concerning his relations to the partnership and the relation of certain conversations he had with deceased about the assets of the partnership, is clearly inadmissible under O. S., 1795.

*16Appeal by defendants from *Johnson, Special Judge,*at October Term, 1942, of "Wilkes.

Civil action to recover the sum’ of $3,197.18 with interest from 15 January, 1940, from A. R. Miller, individually, A. R. Miller and M. C. Wingler, administrators of the estate of N. Wingler, and Harry Pearson and T. J. Pearson, sureties on the aforesaid administrators’ bond.

N. Wingler died intestate in Wilkes County, N. C., on 31 December, 1939, leaving as his sole heirs at law and distributees, two sisters, the plaintiffs in this action, Melvina Wingler and Minda C. Long.

On 29 December, 1939, N. Wingler was admitted as a patient to the Wilkes Hospital, in North Wilkesboro, N. C. At the time of his admission he was in a semi-conscious condition. He had on his person various sums of money, in many small packages and in at least three pocketbooks. The money was counted by the chief surgeon of the hospital and amounted to $6,395.57. Thereafter 'it was turned over to the president of the Bank of North Wilkesboro, who deposited the same to the credit of N. Wingler on 30 December, 1939, in the aforesaid bank.

N. Wingler and A. R. Miller had been partners in a small mercantile business for sixteen years or more. Wingler & Miller had a savings account in the Bank of North Wilkesboro at the time of the death of N. Wingler in the amount of $1,318.08. N. Wingler had a personal savings account in the same bank at the time of his death in the amount of $1,308.71, he also carried a checking account in the Northwestern-Bank of North Wilkesboro. The record does not disclose the amount on deposit in this checking account at the time of his death, neither does it disclose whether the account was carried in his name or in the name of the partnership.

A. R. Miller contends that no settlement was ever made between himself and N. Wingler and that the money found on the person of N. Wing-ler when he entered the hospital belonged to the partnership of Wingler & Miller, and that he is entitled to one-half of said sum, to wit, $3,197.78, being the amount in controversy in this action.

On 15 January, 1940, the aforesaid sum of $6,395.57 was equally divided between A. R. Miller and the estate of N. Wingler. The defendant A. R. Miller alleges and contends said division was made with the approval and consent of the plaintiffs, and alleges they are now estopped to maintain this action for the recovery thereof.

Plaintiffs allege and contend that by reason of fraudulent representations made by A. R. Miller to M. C. Wingler, his co-administrator, the aforesaid sum of $6,395.57 was divided as set forth above, without their knowledge or consent. Plaintiffs offered evidence tending to show that N. Wingler had carried money on his person in packages similar to those found on him at the time he entered the hospital, 29 December, 1939,, *17for a great many years. Two witnesses for the plaintiffs testified that Mr. Wingler had boarded with them for nearly 16 years prior to his death, and when he came to board with them he carried “certain bags, packages or bulks of something on his person” and continued to do so through the years. They further testified the packages were on his person when he left for the hospital.

Prior to the submission of the case to the jury, counsel stipulated as follows:

“It is stipulated between counsel representing the plaintiffs and counsel representing defendants that the Court may submit the case to the jury on one issue_ involving the ownership of the fund found on the person of N. "Wingler and deposited in the Bank of North Wilkesboro to the account of N. Wingler on or about Decembér 29th, 1939.

“It is further stipulated that if the issue is answered in favor of the plaintiffs, that is to say, if the jury find that N. Wingler was the owner individually of said fund, that such finding shall support a judgment against both defendants as Administrators and against A. R. Miller individually and against both the bondsmen for the amount of $3,197.78, with interest from January 15th, 1940, and the cost.

“It is also stipulated that if the issue is answered in favor of the defendants, finding that the fund did not belong to N. Wingler individually, or that the fund belonged to the partnership of Wingler & Miller, that judgment shall be entered in favor of the defendants.

“It is stipulated that the parties waive the submitting of any other issue of issues arising on the pleadings.

“It is further stipulated that all exceptions taken to the ruling of the presiding Judge by either counsel for the plaintiffs or counsel for the defendants are preserved and the right of either the plaintiffs or the defendants to appeal 'to the Supreme Court are in no way affected or waived by these stipulations. The one issue submitted by consent, as follows:

“1. Was the fund found on the person of N. Wingler at the Wilkes Hospital the individual property of N. Wingler, as alleged in plaintiff s’ complaint ?”

The issue was answered in favor of plaintiffs, and from judgment entered thereon the defendants appeal, assigning error.

*J. Allie Hayes and Ira T. Johnston for plaintiffs.*

*Trivette ■& Ilolshouser and John R. Jones for defendants.*

DeNNY, J.

The stipulations entered into by counsel for plaintiffs and defendants limit our consideration to those exceptions and assignments of error bearing on the single issue submitted to the jury by consent, *18to wit, “Was tbe fund found on tbe person óf N. Wingler at tbe Wilkes Hospital tbe individual property of N. Wingler, as alleged in plaintiffs’ complaint?” Tbe question of fraud on tbe part of A. R. Miller, tbe alleged mutual settlement between Miller and tbe estate of N. Wingler, tbe liability of tbe bondsmen, tbe counterclaim of A. R. Miller, etc., discussed in appellants’ brief, are eliminated from our consideration by tbe stipulations of counsel, in tbe following language: “Tbat tbe parties waive tbe submitting of any other issue or issues arising on tbe pleadings.”

Assignments of error numbers 15 and 33 are to tbe refusal of bis Honor to sustain defendants’ motions for judgment of nonsuit lodged at tbe close of plaintiffs’ evidence and renewed at tbe close of all tbe evidence.

There is but little evidence, one way or tbe other, as to tbe ownership of tbe money found on tbe person of N. Wingler at tbe time be entered tbe hospital. Tbe record, however, does disclose tbat N. Wingler worked for a lumber company for some time and operated a store for about sixteen years prior to bis death; tbat from 24 October, 1924, until bis last illness be boarded with Mr. and Mrs. Jim Wingler, who were not related to him. Mr. and Mrs. Wingler testified tbat when be came to board with them be carried certain bags, or packages, on bis person and continued to' do so through tbe years. They further testified tbe packages were on bis person when be left for tbe hospital. , This and other evidence tends to establish the fact tbat N. Wingler did carry a substantial sum of money on bis person for many years prior to bis death. Tbe record further discloses tbat for many years be bad maintained three bank accounts, a checking account in tbe Northwestern Bank of North Wilkesboro, a savings account in tbe name of Wingler & Miller and a savings account in bis own name in tbe Bank of North Wilkesboro. When tbe evidence in this case is taken in tbe light most favorable to tbe plaintiffs, it is sufficient to be submitted to tbe jury, since tbe plaintiffs are entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom. C. S., 567; *Edwards v. Junior Order,*220 N. C., 41, 16 S. E. (2d), 466; *Coltrain v. B. R.,*216 N. C., 263, 4 S. E. (2d), 852; *Lincoln v. R. R.,*207 N. C., 787, 178 S. E., 601; *Cromwell v. Logan,*196 N. C., 588, 146 S. E., 233; *Brown v. B. R.,*195 N. C., 699, 143 S. E., 536; *Robinson v. Ivey,*193 N. C., 805, 138 S. E., 173.

Tbe third exception is to tbe evidence of Dr. Hubbard, tbe chief surgeon of Wilkes Hospital, who found tbe money on tbe person of N. Wingler, took it out of tbe various packages and pocketbooks, counted it and turned it over to tbe president of tbe Bank of North Wilkesboro. In response to tbe following question: “What about tbe way it was done up in different packages, would tbat indicate it bad been carried a *19long period of time?” Dr. Hubbard answered: “Some of it looked like it bad been carried a long time.” Tbe appellants contend tbis answer was prejudicial and tbat tbe witness expressed an opinion upon a point wbicb was a question for tbe jury. We do not tbink tbis evidence prejudicial, especially in view of tbe fact tbat tbe witness was permitted, without objection, to testify about tbis money as follows: “It was in different pockets, in different packages, and in different pocketbooks. He bad, I expect, at least three pocketbooks on him. They were full. It was wrapped up in different dimensions; some of it was old, dry, tbe edges of it worn out from use. It was practically all bills. Tbe bills were of large denomination, several hundred-dollar bills, I remember. If I remember, they were old style, I wouldn’t say most of them, but a lot of them were.” Tbis exception cannot be sustained.

Exception number I challenges tbe admissibility of tbe following evidence of Mel vina Wingler on tbe ground tbat it is too indefinite and uncertain: “2. Please state whether or not at any time prior to bis death during tbe years you have á“een him, if you saw any pocketbooks or packages on or about bis person.” “A. I saw packages all around. He carried them everywhere be went. I never saw what ,was in those packages. I don’t read and write.” In view of tbe admission of other evidence tbat for many years N. Wingler did carry numerous packages of money on bis person, we do not tbink tbis evidence prejudicial to tbe defendants. If tbe testimony bad been prejudicial, it was negatived by tbe further statement of the witness tbat “I never saw what was in those packages.”

Exception number 24 is to tbe admission of tbe testimony of one of tbe plaintiffs, Mrs. Minda C. Long, who testified tbat her brother bad carried money, on bis person, in small packages for many years. Tbe first time she saw him carrying money tbis way was 27 or 28 years ago. She further testified tbat she saw in bis possession not long before bis death nearly $4,000.00. Tbat be bad carried bis money in pocketbooks, a cloth purse, and wrapped in paper pokes. While tbis exception is carried forward in appellants’ brief, no reason or argument is stated or authority cited in support thereof, as required by Rule 28 of tbe Rules of Practice in tbe Supreme Court, 221 N. C., 563. Therefore, this exception is taken as abandoned. *Bank v. Snow,*221 N. C., 14, 18 S. E. (2d), 711; *S. v. Gibson, ibid.,*252; *Brown v. Ward, ibid.,*344.

Assignments of error numbers 9, 10, 12 and 29 are based on numerous exceptions to tbe testimony of Mrs. Long, relative to tbe sale of certain timber, and to tbe testimony of tbe justice of tbe peace before whom tbe timber deed was acknowledged. Tbe substance of Mrs. Long’s testimony was as follows: N. Wingler, Mrs. Melvina Wingler, a sister now dead, and she, owned a boundary of timber. Tbe timber was sold for $2,600.00, *20and tbe witness received $600 for ber interest in tbe timber. Tbe justice of tbe peace testified that be took tbe probate of a timber deed when N. Wingler sold some timber. That be saw tbe money paid over to bim and it was $2,600.00; twenty-six packages of $100.00 eacb.

Tbe evidence of Mrs. Long, relative to tbe sale of timber, was recited before tbe jury three times in tbe course of ber testimony, and stricken out eacb time, and tbe jury instructed to disregard ber testimony as to tbe sale of timber. Tbe appellants contend that tbe evidence was inadmissible and by permitting it to be repeated three times, tbe prejudicial effects thereof could not be cured by instructing tbe jury to disregard it. These assignments of error cannot be sustained, since this testimony does not disclose a personal transaction or communication between tbe deceased and tbe witness about which tbe witness could not testify by reason of tbe provision of C. S., 1795. This Court said, in *S. v. Osborne,*67 N. C., 259 : “The plaintiff, it is true, was not competent to prove any transaction between himself and bis deceased guardian; but be was competent to prove any other transaction of his guardian. Tbe transaction, in this case, was a sale of property of tbe plaintiff by bis guardian to a third person.” Substantive facts of which a witness bad knowledge independently of any statement by tbe deceased, or any transaction with tbe deceased, are competent and do not come within tbe inhibition's of C. S., 1795. *Jones v. Waldroup,*217 N. C., 178, 7 S. E. (2d), 366; *Collins v. Lamb,*215 N. C., 719, 2 S. E. (2d), 863; *Ins. Co. v. Jones,*191 N. C., 176, 131 S. E., 587; *In re Will of Saunders,*177 N. C., 156, 98 S. E., 378; *Sutton v. Wells,*175 N. C., 1, 94 S. E., 688. There is nothing in tbe testimony of this witness that tends to show she gained ber information about tbe sale of ber interest in this boundary of timber exclusively through any conversation or transaction with ber deceased brother. Tbe substance of tbe testimony is that she and other members of ber family owned a boundary of timber. It was sold to a third party for $2,600.00, and she received $600.00 for ber interest. Hence, tbe defendants have no cause for complaint in connection with tbe admission of tbis evidence and tbe subsequent exclusion thereof.

Assignments of error numbers 18, 19 and 20 are to tbe refusal of bis Honor to permit A. R. Miller to testify concerning bis relationship to tbe copartnership and to relate certain conversations be bad with tbe deceased about tbe assets of tbe partnership. Tbe evidence is clearly inadmissible. A. R. Miller is (a) a party to tbe action, (b) be is interested in tbe event of tbe action, and (e) N. Wingler is dead and because his lips are sealed in death Miller is incompetent to testify in bis own behalf to any transaction or communication between himself and tbe intestate. C. S., 1795 ; *Turlington v. Neighbors,*222 N. C., 694, 24 S. E. (2d), 648; *Wilder v. Medlin,*215 N. C., 542, 2 S. E. (2d), 549; *Fenner**21*v. Tucker,*213 N. C., 419, 196 S. E., 357; *Walston v. Coppersmith,*197 N. C., 407, 149 S. E., 381; *Abernathy v. Skidmore,*190 N. C., 66, 128 S. E., 475.

Tbe remaining exceptions are without merit, or refer to evidence- on other issues which were eliminated by the stipulations of counsel.

The case was one for the jury and we find no error that would justify disturbing the verdict.

No error.