The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-11-06
SUPREME COURT DECISIONS.
Digest of the Opinions Handed Down
During the Past Week.

During the Past Week.
reported by Perrin Busbee, Esq, of the
Raleigh Bar
W. FL. Johnston, Ex'r, (appellant vs.. W.
T. Knight ct al, from Vance county.
Opinion by Faircloth, @. ].
/, If the dOnee of a power intends to
execute that power, that intention, how
ever manifested, whether directly
or indirectly, positively or by just
implication, will make the execution
valid and operative.
Q. A residuary devise will operate as
an execution of power to dispose of
a property by will, unless there is some
thing to show that such was not the tes-
tator's intention.
8. As there is nothing to show con-
trary intention, the fact that the donee
of the power devises to the identical per-
SONS and no others, who were designated
in the will giving the power intended
thereby to exercise the authority given
her; and as the donee could not have de-
yised the property to any one else, a re-
siduary clause in such will includes all
the property which the deyiser could dis
pose of.
4. Where a will provides ''that the
balance of my estate be equally divided
between A, B, aud the children of @ and
D, and the children of E." Held, that
these words require distribution per
capita, as any other construction would
do violence to the apparent intent of the
will.
Affirmed.
A. W. Shaffer VS.. Bryan Gaynor appel
lant), from Beaufort county. Opinion
by Avery, j.
/. Testimony tending to locate the
boundaries of land by the general repu
tation in the neighborhood is admissible
under any circumstances.
Q. Where the acts of dominion con-
sisted in cutting timber some time dur
ing particular year on piece of wood
land, but there was no evidence to show
that the acts were continuous, or that
the land, though while covered with tim
Der, was not susceptible TO other use and
might not have been cleared and Guilt
waited, regardless of its capacity for
profitable production: Held, that such
acts are not such assertions of ownership
as would ripen into title.
8. Parol proof is not, as a general rule,
admissible to vary or contradict plain
written description, but it is always COM
petent to show where the parties to deed
located the lines and corners by con-
temporaneous survey in order to define
more exactly what was intended to pass.
Hence it is competent TO prove that a con-
temporaneous, but not a subsequent sur
vey, located corner at a place different
from that ascertained by following course
and distance.
4. Where declarations are made by one
in possession of land, characterizing or
explaining his claim of ownership, or IN
disparagement of his own title, they are
competent as evidence, not only against
the declarant, but against all persons
claiming under him. But such declara
tions, when offered to contradict plain,
unambiguous description, are lncompe-
tent.
5. Where the defendant, with view
of showing damages, offered to show
that one Linke prevented the sale of the
lumber cut by him on the land in dis
pute; Held, that it was not error to ex-
clude such evidence, as there had been
no testimony to show that Linke was
the agent of the plaintiff
6. Where the executions under which
the land was sold issued upon debts
created before the year 1868, title passed
to the purchaser discharged of all
liability to allotment as a homestead.
Affirmed.
Howell a. Jeffreys vs.. ]. B. Coleman and
wife (appellants) from Edgecombe
county. Opinion by Faircloth, @. j.
1. Where it was admitted that when
the mortgage for 81 900 was signed by
the defendants it secured only $500, and
that in that condition the defendant, j.
B. Coleman, carried it to the store of
the plaintiffs, the mortgages, and
where there was conflicting evidence as
to the time when the change was made
in the mortgage; Held, that the one
issue submitted: lis the mortgage and
crop lien for 81 900, dated July 81, 1891,
and probated September o, 1891, the
deed of the defendants2n together with
his Honors charge that the change being
admitted, the burden was on the plain
tiffs to satisfy the jury that such change
was made with the consent of the de-
PENDANTS, or was known and approved
by them at or before the acknowledge
ment for probate and registration, was
sufficient both in form and substance.
Q. The fact that the feme defendant
admitted that she read and examined
the deed when she acknowledged it for
probate is sufficient evidence of knowl-