The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-05-26


On objection held incompetent and de.
PENDANTS appealed. Thre was also tes-
timony offered as to declaration of
the owner of the land since dead, in a
deed.
Held, 1t is the law of the State that
both hearsay evidence and general
reputation as to boundaries are per-
missible. The declarations must be
made however, ante Item motem
the declarant must be dead when they
are offered and he must have been
disinterested when they were made.
Therefore the declarations in the
Hemphill deed were incompetent, as
declarator was interested as the owner
of the land.
AS to the evidence of the witness
Chambers it complied with the statute
in that it was remote in character,
ante Item motem, attached itself to
monument of boundary and was sup
ported by evidence and occupation and
acquiescence tending to give the land
fixed and definite location.
ID. Il. Arey VS.. Commissioners OF
Rowan County. Burton Craige and w.
II. Woodson for appellant; 7. c. Linn
for appellee. Brown, j.
Controversy submitted to test valid
ity of tax imposed by sections 60 and
S. chapter 245, acts 1908. Section 63
imposes a tax of $125 on diStillers of
40 bushels capacity and section 60
tax of 5000 on rectifyers of liquor.
Plaintiff admits liability to the tax UNI
der section so, but denies that he is
liable to that under section 60 as puri-
flying liquors is an incident of his bust
ness as a distillcr and the double tax
is unconstitutional.
Held. That the legislative mind
seems to have held the two processes
to be separate and distinct businesses
and the burden of proof is on the
plaintiff to show that they are one and
the same Assuming that the two
occupations of distilling and rectify-
ing may be united as one and conduct
ed by one person, there is nothing in
the State constitution to prevent the
General Assembly from imposing the
increased tax upon the distiller who
also conducts a rectifying plant. Sub
iect to the original law, the power of
the General Assembly to tax is SUI
preme.
j. Il. DucI<worth, Admir- VS.. w. b.
Jordan ct ais. Moore and Rollins for
appellants Merrimon and Merrimon
for appellee Walker, j.
Testator devised his home lands to
his wife for and during her natural
life and after her death to his nephew
Thomas and his heirs. The fourth
my will and desire is that all the
residue of my estate after the death
of my wife shall be sold and the debts
owing shall be collected and to be
equally divided and paid over to my
brother S. DIS children to each and
every one of them their executors
administrators and assigns" The
executors named in the will declined
TO qualify and plaintiff was appoint
4, inf. frat tor. a n
nexed. The nephew Thomas pre-
deceased the teStator and at the lat
ters death the children of S. d. Eek
cepting H. who died leaving nus
band and six children of whom two
were minors) as we'll as the adult
children of II. conveyed the lands to
the defendants, ID. and w The acton
was brought by the plaintiff admins
traitor for a construction of the Will
as to his right to sell the land and
distribute proceeds as provided in the
fourth clause of the will. All the chill
dren of s. d., the husband and chill
dren of Hannah and the purchasers or
the land were made parties defendant,
and contended that they had elected
to take the lands instead of the pro-
ceeds of a sale thereof by way of re-
conversion thereof to prevent the eX-
ercise of the power claimed by plain
tiff to sell the same.
Held: .
First: That the property, the sub
iect of the lapscd item of the will
passed under the residuary clause to
the children of S. D., there being
nothing in the will to show an intent
contrary to the statute, section 2l42
of The Code.
Second: That under the fourth item
of the will there was an equitable
conversion of the property and for
the purpose of devolution and trans
fer the land was considered as money;
II. having died without action con-
corning it her share devolVed upon
her husband who has the right to adj
minister upon his wife's estate and to
take and hold the same to his own
use and he being the sole beneficial
owner of his wife's share (subject to
any indebtedness he alone is re-
quired to make an election as to that
share and having made his election,
with the others oncurring, on recon
version, he is the owner of that inter-
est in the land in his own right.
Third: That a case of reconyersion
by election, valid and binding on all
the parties having a beneficial inter-
est in the property, being established
by the answer, the power of sale
under the will is extinguished-pro-
vded that there are no debts OF the
testator to be paid.
Other decisions decided were:
Cowan VS.. Ice Company, from Bun
combe, per curiam, affirmed.
State VS.. L. N. Jones, from Arson,
yer curiam, no error.
Fox VS.. Telephone Company, from
Davidson, per curiam, affirmed.
Leach VS. Telegraph Company, from
Cherokee, per curtain, affirmed.
Curtis VS. Railroad, from Swain, per
curiam, affirmed.
Wilson VS.. Bryson, from Jackson,
per curtain. affirmed.
State VS.. Meacham, from Arson, per
curtain, affirmed on authority Carr VS..
Commissioners, 1876 n. c., 1875 and
state VS.. Sheppard, at this term.
Other cases decided last Tuesday
and not printed for lack of Space
were as follows
Battery Park Bank VS. Western Caro-
lima Bank. In re Merrick and
Hewitt.
Action involving title to land. Plain