Denny, J.
We shall first consider the defendant’s appeal.
The trial below was conducted upon the theory that since the real property had been held by the plaintiff and the defendant’s intestate as tenants by the entirety, the proceeds derived from the sale thereof, if such proceeds were held by defendant’s intestate at the time of his death, passed to his administrator, as a part of the estate, and are held in trust for the survivor, his wife. In this there was error.
An estate by entirety in personal property is not recognized in tbis State.
Turlington v. Lucas,
186 N. C., 283, 199 S. E., 366;
Davis v. Bass,
188 N. C., 200, 124 S. E., 566;
Winchester v. Cutler,
194 N. C., 698, 140 S. E., 622;
Dozier v. Leary,
196 N. C., 12, 144 S. E., 368, 117 A. L. R., 922 n. Just as a divorce
a vinculo
will destroy the unity of husband and wife, and convert an estate by the entirety into a tenancy in common,
McKinnon v. Caulk,
167 N. C., 411, 83 S. E., 559;
Davis v. Bass, supra,
so may an estate by the entirety be destroyed or dissolvéd by the joint acts of the parties.
Moore v. Trust Co.,
178 N. C., 118, 100 S. E., 269. Hence, when property held as tenants by the entirety is sold, the proceeds derived from the sale will not be held as tenants by the entirety with the right of survivorship. Ordinarily, nothing else appearing, the proceeds from the sale of property held by the entireties are held as tenants in common, but the parties would have the right to determine by contract what disposition should be made of the funds or how they should be held.
Moore v. Trust Co., supra.
Moreover, since the abolition of survivorship in joint tenancy, G. S., 41-2, the right of survivorship in personalty, if such right exists, must be pursuant to contract and not by operation of law or statutory provision.
Taylor v. Smith,
116 N. C., 531, 21 S. E., 202.
It should be borne in mind that a husband has no right to hold real estate as the survivor of an estate purporting to be one by the entireties, as against the heirs of the wife, if the consideration paid for the property came from the separate estate of the wife.
Carter v. Oxendine,
193 N. C., 478, 137 S. E., 424;
Deese v. Deese,
176 N. C., 527, 97 S. E., 475. Neither does a conveyance to husband and wife, of land representing'a wife’s interest in an estate, create an estate by the entireties.
Garris v. Tripp,
192 N. C., 211, 134 S. E., 461;
Wood v. Wilder,
222 N. C., 622, 24 S. E. (2d), 474;
Duckett v. Lyda,
223 N. C., 356, 26 S. E. (2d), 918. Therefore, the holding that there can be no estate by the entireties in personal property, does not endanger or in any way impair the separate estate of the wife.
The appellee is relying upon what is said in
Place v. Place,
206 N. C., 676, 174 S. E., 747, to sustain the verdict below. She contends the case is directly in point and by reason of the holding therein, she is entitled to all the proceeds received by the defendant’s intestate, from the sale of the real property referred to herein, including the proceeds collected or to be collected from deferred payments thereon, since the death of her husband.
It does appear from the evidence that certain notes which represented the balance of the sale price of some of the lots conveyed by I). G. Wilson and wife, Maggie Wilson, were outstanding and unpaid at the time of the death of D. G. Wilson. But it is not disclosed by the evidence, to whom these notes were made payable. Consequently, if the plaintiff is
not entitled to the proceeds derived from the collection of these notes by operation of law, she has not offered sufficient evidence to establish a claim thereto against the estate of the defendant’s intestate.
In the case of
Place v. Place, supra,
the question as to whether or not there can be an estate by the entirety in personal property was not before the Court for decision. J. E. Place at the time of his death had deposited the sum of $2,750.00 in a bank, said sum being the entire proceeds from the sale of land held by him and his wife as tenants by the entirety. The widow qualified as administratrix of his estate. She thereafter instituted a special proceeding, in which she claimed all of the aforesaid fund by right of survivorship, and obtained a judgment therefor. Notice of appeal was given to the Supreme Court by the respondents, but the appeal was not perfected. In the meantime, the bank in which the funds were deposited failed. The sum of .$812.50 was recovered from the bank and paid on the judgment. Then a proceeding was instituted to determine whether or not the original judgment constituted a general claim against the estate of J. E. Place, or merely a claim against the fund which represented the proceeds from the sale of the land held by entirety. This Court held that the original judgment established the claim as a debt against the estate and that the petitioner was entitled to have the judgment paid in full. What was said in the opinion as to the basis for the original claim upon which the first judgment was obtained was not necessary to a decision on the question presented, and will therefore not be construed as authority for the position taken by the appellee on this appeal.
In view of what we have said above, we must now determine whether or not the plaintiff offered any competent evidence to establish a claim against the estate of the defendant’s intestate.
The plaintiff offered competent evidence to show that the proceeds from the sale of certain lots held by her and her husband prior to his death, as tenants by the entireties, were received by him. She alleges in her complaint that no part of these funds were paid to her by her husband prior to his death. She seeks to sustain this allegation by her own testimony and that of her brother-in-law.
The plaintiff was permitted to testify, over the objection of the defendant, that she never received any of the proceeds derived from the sale of the properties referred to herein. Having offered evidence to show that her deceased husband received these funds prior to his death, her testimony to the effect that she had not received any of these funds was tantamount to testifying that the estate of her husband is now indebted to her for whatever interest she may have in the funds. We do not think this testimony was admissible under the provisions of G. S., 8-51.
Angel v. Angel,
127 N. C., 451, 37 S. E., 479;
Benedict v. Jones,
129 N. C., 475, 40 S. E., 223;
McGowan v. Davenport,
134 N. C., 526,
47 S. E., 27;
Sherrill v. Wilhelm,
182 N. C., 673, 110 S. E., 95;
Boyd v. Williams,
207 N. C., 30, 175 S. E., 832;
Davis v. Pearson,
220 N. C., 163, 16 S. E. (2d), 665; Stansbury on Evidence, Sec. 73.
Tbe identical question raised bere was decided in
Angel v. Angel, supra.
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Denny, J.
We shall first consider the defendant’s appeal.
The trial below was conducted upon the theory that since the real property had been held by the plaintiff and the defendant’s intestate as tenants by the entirety, the proceeds derived from the sale thereof, if such proceeds were held by defendant’s intestate at the time of his death, passed to his administrator, as a part of the estate, and are held in trust for the survivor, his wife. In this there was error.
An estate by entirety in personal property is not recognized in tbis State.
Turlington v. Lucas,
186 N. C., 283, 199 S. E., 366;
Davis v. Bass,
188 N. C., 200, 124 S. E., 566;
Winchester v. Cutler,
194 N. C., 698, 140 S. E., 622;
Dozier v. Leary,
196 N. C., 12, 144 S. E., 368, 117 A. L. R., 922 n. Just as a divorce
a vinculo
will destroy the unity of husband and wife, and convert an estate by the entirety into a tenancy in common,
McKinnon v. Caulk,
167 N. C., 411, 83 S. E., 559;
Davis v. Bass, supra,
so may an estate by the entirety be destroyed or dissolvéd by the joint acts of the parties.
Moore v. Trust Co.,
178 N. C., 118, 100 S. E., 269. Hence, when property held as tenants by the entirety is sold, the proceeds derived from the sale will not be held as tenants by the entirety with the right of survivorship. Ordinarily, nothing else appearing, the proceeds from the sale of property held by the entireties are held as tenants in common, but the parties would have the right to determine by contract what disposition should be made of the funds or how they should be held.
Moore v. Trust Co., supra.
Moreover, since the abolition of survivorship in joint tenancy, G. S., 41-2, the right of survivorship in personalty, if such right exists, must be pursuant to contract and not by operation of law or statutory provision.
Taylor v. Smith,
116 N. C., 531, 21 S. E., 202.
It should be borne in mind that a husband has no right to hold real estate as the survivor of an estate purporting to be one by the entireties, as against the heirs of the wife, if the consideration paid for the property came from the separate estate of the wife.
Carter v. Oxendine,
193 N. C., 478, 137 S. E., 424;
Deese v. Deese,
176 N. C., 527, 97 S. E., 475. Neither does a conveyance to husband and wife, of land representing'a wife’s interest in an estate, create an estate by the entireties.
Garris v. Tripp,
192 N. C., 211, 134 S. E., 461;
Wood v. Wilder,
222 N. C., 622, 24 S. E. (2d), 474;
Duckett v. Lyda,
223 N. C., 356, 26 S. E. (2d), 918. Therefore, the holding that there can be no estate by the entireties in personal property, does not endanger or in any way impair the separate estate of the wife.
The appellee is relying upon what is said in
Place v. Place,
206 N. C., 676, 174 S. E., 747, to sustain the verdict below. She contends the case is directly in point and by reason of the holding therein, she is entitled to all the proceeds received by the defendant’s intestate, from the sale of the real property referred to herein, including the proceeds collected or to be collected from deferred payments thereon, since the death of her husband.
It does appear from the evidence that certain notes which represented the balance of the sale price of some of the lots conveyed by I). G. Wilson and wife, Maggie Wilson, were outstanding and unpaid at the time of the death of D. G. Wilson. But it is not disclosed by the evidence, to whom these notes were made payable. Consequently, if the plaintiff is
not entitled to the proceeds derived from the collection of these notes by operation of law, she has not offered sufficient evidence to establish a claim thereto against the estate of the defendant’s intestate.
In the case of
Place v. Place, supra,
the question as to whether or not there can be an estate by the entirety in personal property was not before the Court for decision. J. E. Place at the time of his death had deposited the sum of $2,750.00 in a bank, said sum being the entire proceeds from the sale of land held by him and his wife as tenants by the entirety. The widow qualified as administratrix of his estate. She thereafter instituted a special proceeding, in which she claimed all of the aforesaid fund by right of survivorship, and obtained a judgment therefor. Notice of appeal was given to the Supreme Court by the respondents, but the appeal was not perfected. In the meantime, the bank in which the funds were deposited failed. The sum of .$812.50 was recovered from the bank and paid on the judgment. Then a proceeding was instituted to determine whether or not the original judgment constituted a general claim against the estate of J. E. Place, or merely a claim against the fund which represented the proceeds from the sale of the land held by entirety. This Court held that the original judgment established the claim as a debt against the estate and that the petitioner was entitled to have the judgment paid in full. What was said in the opinion as to the basis for the original claim upon which the first judgment was obtained was not necessary to a decision on the question presented, and will therefore not be construed as authority for the position taken by the appellee on this appeal.
In view of what we have said above, we must now determine whether or not the plaintiff offered any competent evidence to establish a claim against the estate of the defendant’s intestate.
The plaintiff offered competent evidence to show that the proceeds from the sale of certain lots held by her and her husband prior to his death, as tenants by the entireties, were received by him. She alleges in her complaint that no part of these funds were paid to her by her husband prior to his death. She seeks to sustain this allegation by her own testimony and that of her brother-in-law.
The plaintiff was permitted to testify, over the objection of the defendant, that she never received any of the proceeds derived from the sale of the properties referred to herein. Having offered evidence to show that her deceased husband received these funds prior to his death, her testimony to the effect that she had not received any of these funds was tantamount to testifying that the estate of her husband is now indebted to her for whatever interest she may have in the funds. We do not think this testimony was admissible under the provisions of G. S., 8-51.
Angel v. Angel,
127 N. C., 451, 37 S. E., 479;
Benedict v. Jones,
129 N. C., 475, 40 S. E., 223;
McGowan v. Davenport,
134 N. C., 526,
47 S. E., 27;
Sherrill v. Wilhelm,
182 N. C., 673, 110 S. E., 95;
Boyd v. Williams,
207 N. C., 30, 175 S. E., 832;
Davis v. Pearson,
220 N. C., 163, 16 S. E. (2d), 665; Stansbury on Evidence, Sec. 73.
Tbe identical question raised bere was decided in
Angel v. Angel, supra.
Tbe witness testifying in bis own bebalf, in an effort to establish a set-off against tbe estate of tbe deceased, was asked, over objection, if anybody had paid him for certain merchandise be bad furnished plaintiff’s intestate. Thereupon tbe witness testified that no one bad paid him for tbe goods. The Court said: “We think that this evidence was clearly incompetent, under section 590 of tbe Code (now G. S., 8-51). It needs no citation of authority to show that tbe defendant could not have testified that tbe intestate bad never paid for tbe goods, and yet that was exactly tbe effect of bis testimony when be said that nobody bad paid him. Such a palpable evasion of tbe statute, which would be contrary to its essential meaning and would destroy its beneficial purpose, can not be permitted.”
Tbe present
Chief Justice,
speaking for tbe Court in
Sherrill v. Wilhelm, supra,
said: “We think a fair test in undertaking to ascertain what is a ‘personal transaction or communication’ with the deceased about which tbe -other party to it cannot testify is to inquire whether, in ease tbe witness testify falsely, the deceased, if living, could contradict it of bis own knowledge.” Applying tbe foregoing principles to tbe evidence under consideration, we think tbe defendant’s exception to tbe admission of tbe evidence was well taken and must be sustained.
Tbe remaining evidence offered by tbe plaintiff to show that she bad not received any of tbe funds involved in this action from her husband prior to his death, was tbe testimony of J. S. Brown, her brother-in-law. Mr. Brown testified that at no time during tbe life of tbe defendant’s intestate bad be represented him in any of bis business affairs. Nevertheless, in an effort to prove that plaintiff is now entitled to tbe funds in controversy, this witness was permitted to testify, over tbe objection of tbe defendant, that D. G-. Wilson bad never told him be bad paid bis wife any of tbe proceeds received from tbe sale of tbe lots referred to herein. How could this be competent? Tbe witness, according to bis own testimony, knew nothing about tbe business transactions of D. G-. Wilson prior to bis death. And tbe mere fa'ct that D. G. Wilson bad never told tbe witness that be bad made a financial settlement with bis wife, would not be competent evidence to prove that such a settlement bad not been made. It possibly never occurred to Mr. Wilson that it was necessary or proper for him to discuss bis private business affairs with bis wife’s brother-in-law. The exception to tbe admission of this evidence is sustained.
Tbe burden of proof was on tbe plaintiff to make out ber claim against tbe estate of tbe defendant’s intestate. Tbis sbe bas not done on tbis record. Tbe motion for judgment as of nonsuit should bave been allowed.
In view of tbe conclusion reached it becomes unnecessary to discuss tbe plaintiff’s appeal. However, since tbe plaintiff as an appellant did not file a brief, as required by Rule 28 of the Rules of Practice in the Supreme Court, 221 N. C., 563, tbe plaintiff’s appeal will be dismissed.
Defendant’s appeal — Reversed.
Plaintiff’s appeal — Dismissed.