Opinion
(September Term, 1892.)
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, N.C. 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 said 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.
(37) ACTION heard by Shuford, J., on 27 April, 1892, at Chambers in Plymouth, by consent, on an appeal from a decree rendered by the clerk of the Superior Court of PASQUOTANK.
No counsel for plaintiff.
E. F. Aydlett for defendant.
The clerk of the Superior Court made a decree adjudging (39) 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 (40) 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.
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 this 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. Hooper v. Moore, 50 N.C. 130.
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 distributees, and J. L. Hinton, 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 (41) benefit of the poor of said county.
The testator bequeathed 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 the 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 judicial decisions, or by the opinions of men learned in the law, that a different construction would prevail in Maryland. Worrell v. Vinson, 50 N.C. 91. 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 that state govern the exposition of the testator's will, because he was there domiciled at the time of its execution and of his death. Worrell v. Vinson, supra; Allen v. Pass, 20 N.C. 207.
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 as trustees, or by William Thomas as representative of the (42) 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 N.C. 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."
AFFIRMED.