WiNBORNE, J.
Two questions arise on this appeal:
1. Is there sufficient evidence of a resulting trust for submission of the case to the jury? We hold that there is.
“It is a well established principle that where, upon a purchase of property, the conveyance of the legal title is taken in the name of one person while the consideration is given or paid by another, at the same
time or previously, and as a part of the same transaction, tbe parties being strangers to eaeb other, a resulting trust immediately arises from the transaction, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds,”
Shepherd, C. J.,
in
Summers v. Moore,
113 N. C., 394, 18 S. E., 712;
Gorrell v. Alspaugh,
120 N. C., 362, 27 S. E., 85;
Norton v. McDevitt,
122 N. C., 755, 30 S. E., 24;
Harris v. Harris,
178 N. C., 7, 100 S. E., 125;
Tire Co. v. Lester,
190 N. C., 411, 130 S. E., 45;
Furniture Co. v. Cole,
207 N. C., 840, 178 S. E., 579;
Jackson v. Thompson,
214 N. C., 539, 200 S. E., 16, and other cases.
In
Tire Co. v. Lester, supra, Varser, J.,
paraphrases: “The payment of the purchase money raises a resulting trust in favor of him who ‘furnishes’ or ‘pays’ or ‘owns’ the purchase money, unless a contrary intention or a contrary presumption of law prevents.”
Eesulting trusts, arising by operation of law, do not come within the statute of frauds and may be proved by parol evidence. Such trusts are in this State generally known as parol trusts.
Gorrell v. Alspaugh, supra.
In order to establish a resulting trust, the proof must be clear, cogent and convincing.
Avery v. Stewart,
136 N. C., 426, 48 S. E., 775;
Tire Co. v. Lester, supra; Peterson v. Taylor,
203 N. C., 673, 166 S. E., 800, and eases therein cited.
In
Avery v. Stewart, supra,
the Court said: “It is not for the judge to pass upon the intensity of the proof. That is a matter which lies solely within the province of the jury. . . . The jury should be instructed, to be sure, that the evidence must be clear and satisfactory in cases to which that principle applies, but it is for the jury to say whether the evidence is of that convincing character.”
In the present case, applying these principles, we are of opinion that the third issue was fairly presented to the jury under a charge in which applicable principles of law were clearly and plainly declared. The court properly placed the burden of proof as to the issue upon the defendant Hannah Williams. The evidence as to the payment by her of the purchase price of the lot in question and the taking of title in the name of Ernest W. Johnson, as parts of the same transaction, was amply sufficient to be submitted for the consideration of the jury. The intensity of the evidence and its convincing character were for the jury. The facts relied upon,
dehors
the deed, are sufficient to authorize the finding in favor of the resulting trust.
In this phase of the appeal it is not inappropriate to note that some of the plaintiff’s objections to testimony are to portions of the evidence
en masse.
If there be part which is objectionable, plaintiff should point it out. This is the firmly established rule. Exceptions to all of it will not be sustained.
S. v. Ledford,
133 N. C., 714, 45 S. E., 944;
Nance
v. Telegraph Co.,
177 N. C., 313, 98 S. E., 838;
Harris v. Harris, supra; Singleton v. Roebuck, 178
N. C., 201, 100 S. E., 313;
Kennedy v. Trust Co.,
180 N. C., 225, 104 S. E., 464. It will be observed, however, that much of testimony so objected to is clearly admissible and pertinent, and that none of it is prejudicial.
We call attention to that portion of Rule 2S of Rules of Practice in the Supreme Court, 213 N. C., 808, which provides that — “Exceptions in the record not set out in the appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”
2. Where wife, who is beneficiary under policy of insurance on life of husband, predeceases him, intestate, leaving next of kin, but no child or representative of deceased child, surviving, and there having been no change in beneficiary and no disposition by her of her interest in the policy, who is entitled to the insurance money paid upon death of insured husband? Under similar conditions, does the same rule apply as to other personal property?
“It is the recognized general rule that, in the absence of stipulation or condition affecting it, the beneficiary designated as such in an ordinary life policy . . . has a vested interest therein which cannot be destroyed or altered without his consent, . . .,”
Hoke, J.,
in
Walser v. Ins. Co.,
175 N. C., 350, 95 S. E., 54;
Conigland v. Smith,
79 N. C., 303, as modified by
Hooker v. Sugg,
102 N. C., 115, 8 S. E., 919;
Lanier v. Ins. Co.,
142 N. C., 14, 54 S. E., 786;
Wooten v. Odd Fellows,
176 N. C., 52, 96 S. E., 654;
Lockhart v. Ins. Co.,
193 N. C., 8, 136 S. E., 243;
Parker v. Potter,
200 N. C., 348, 157 S. E., 68;
Russell v. Owen,
203 N. C., 262, 165 S. E., 687;
Fertilizer Co. v. Godley,
204 N. C., 243, 167 S. E., 816.
In the instant case the vested interest of the wife as beneficiary was not destroyed or altered and at the maturity of the policy remained a personal asset of her estate, which the administrator of the husband was entitled to receive as other personal property subject to the provision of C. S., 7.
Section 7 of Consolidated Statutes of 1919 provides: “If any married woman dies wholly or partially intestate, the surviving husband shall be entitled to administer on her personal estate and shall hold the same, subject to the claims of her creditors and others having rightful demands against her, to his own use, except as hereinafter provided. If the husband dies after his wife, but before administering, hi? executor or admin- ' istrator or assignee shall receive the personal property of the. said wife, as a part of the estate of the husband, subject as aforesaid, and except as provided by law.”
This statute is codification of an act passed by the General Assembly at its session 1871-72, chapter 193, section 32.
In
Wooten v. Wooten,
123 N. C., 219, 31 S. E., 491, speaking to this statute, the Court said: “This changed (the) rule of common law, which was that personalty of the wife did not go to the husband when he died without having reduced it to possession by administration. And further, in conformity to this change, it devolves the right of administering upon the wife’s estate upon the executor or administrator of the husband
ex oficio.”
After the enactment of this statute, two cases, pertinent to the question involved in the case at bar, were decided in this Court:
Conigland v.
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WiNBORNE, J.
Two questions arise on this appeal:
1. Is there sufficient evidence of a resulting trust for submission of the case to the jury? We hold that there is.
“It is a well established principle that where, upon a purchase of property, the conveyance of the legal title is taken in the name of one person while the consideration is given or paid by another, at the same
time or previously, and as a part of the same transaction, tbe parties being strangers to eaeb other, a resulting trust immediately arises from the transaction, and the person named in the conveyance will be a trustee for the party from whom the consideration proceeds,”
Shepherd, C. J.,
in
Summers v. Moore,
113 N. C., 394, 18 S. E., 712;
Gorrell v. Alspaugh,
120 N. C., 362, 27 S. E., 85;
Norton v. McDevitt,
122 N. C., 755, 30 S. E., 24;
Harris v. Harris,
178 N. C., 7, 100 S. E., 125;
Tire Co. v. Lester,
190 N. C., 411, 130 S. E., 45;
Furniture Co. v. Cole,
207 N. C., 840, 178 S. E., 579;
Jackson v. Thompson,
214 N. C., 539, 200 S. E., 16, and other cases.
In
Tire Co. v. Lester, supra, Varser, J.,
paraphrases: “The payment of the purchase money raises a resulting trust in favor of him who ‘furnishes’ or ‘pays’ or ‘owns’ the purchase money, unless a contrary intention or a contrary presumption of law prevents.”
Eesulting trusts, arising by operation of law, do not come within the statute of frauds and may be proved by parol evidence. Such trusts are in this State generally known as parol trusts.
Gorrell v. Alspaugh, supra.
In order to establish a resulting trust, the proof must be clear, cogent and convincing.
Avery v. Stewart,
136 N. C., 426, 48 S. E., 775;
Tire Co. v. Lester, supra; Peterson v. Taylor,
203 N. C., 673, 166 S. E., 800, and eases therein cited.
In
Avery v. Stewart, supra,
the Court said: “It is not for the judge to pass upon the intensity of the proof. That is a matter which lies solely within the province of the jury. . . . The jury should be instructed, to be sure, that the evidence must be clear and satisfactory in cases to which that principle applies, but it is for the jury to say whether the evidence is of that convincing character.”
In the present case, applying these principles, we are of opinion that the third issue was fairly presented to the jury under a charge in which applicable principles of law were clearly and plainly declared. The court properly placed the burden of proof as to the issue upon the defendant Hannah Williams. The evidence as to the payment by her of the purchase price of the lot in question and the taking of title in the name of Ernest W. Johnson, as parts of the same transaction, was amply sufficient to be submitted for the consideration of the jury. The intensity of the evidence and its convincing character were for the jury. The facts relied upon,
dehors
the deed, are sufficient to authorize the finding in favor of the resulting trust.
In this phase of the appeal it is not inappropriate to note that some of the plaintiff’s objections to testimony are to portions of the evidence
en masse.
If there be part which is objectionable, plaintiff should point it out. This is the firmly established rule. Exceptions to all of it will not be sustained.
S. v. Ledford,
133 N. C., 714, 45 S. E., 944;
Nance
v. Telegraph Co.,
177 N. C., 313, 98 S. E., 838;
Harris v. Harris, supra; Singleton v. Roebuck, 178
N. C., 201, 100 S. E., 313;
Kennedy v. Trust Co.,
180 N. C., 225, 104 S. E., 464. It will be observed, however, that much of testimony so objected to is clearly admissible and pertinent, and that none of it is prejudicial.
We call attention to that portion of Rule 2S of Rules of Practice in the Supreme Court, 213 N. C., 808, which provides that — “Exceptions in the record not set out in the appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”
2. Where wife, who is beneficiary under policy of insurance on life of husband, predeceases him, intestate, leaving next of kin, but no child or representative of deceased child, surviving, and there having been no change in beneficiary and no disposition by her of her interest in the policy, who is entitled to the insurance money paid upon death of insured husband? Under similar conditions, does the same rule apply as to other personal property?
“It is the recognized general rule that, in the absence of stipulation or condition affecting it, the beneficiary designated as such in an ordinary life policy . . . has a vested interest therein which cannot be destroyed or altered without his consent, . . .,”
Hoke, J.,
in
Walser v. Ins. Co.,
175 N. C., 350, 95 S. E., 54;
Conigland v. Smith,
79 N. C., 303, as modified by
Hooker v. Sugg,
102 N. C., 115, 8 S. E., 919;
Lanier v. Ins. Co.,
142 N. C., 14, 54 S. E., 786;
Wooten v. Odd Fellows,
176 N. C., 52, 96 S. E., 654;
Lockhart v. Ins. Co.,
193 N. C., 8, 136 S. E., 243;
Parker v. Potter,
200 N. C., 348, 157 S. E., 68;
Russell v. Owen,
203 N. C., 262, 165 S. E., 687;
Fertilizer Co. v. Godley,
204 N. C., 243, 167 S. E., 816.
In the instant case the vested interest of the wife as beneficiary was not destroyed or altered and at the maturity of the policy remained a personal asset of her estate, which the administrator of the husband was entitled to receive as other personal property subject to the provision of C. S., 7.
Section 7 of Consolidated Statutes of 1919 provides: “If any married woman dies wholly or partially intestate, the surviving husband shall be entitled to administer on her personal estate and shall hold the same, subject to the claims of her creditors and others having rightful demands against her, to his own use, except as hereinafter provided. If the husband dies after his wife, but before administering, hi? executor or admin- ' istrator or assignee shall receive the personal property of the. said wife, as a part of the estate of the husband, subject as aforesaid, and except as provided by law.”
This statute is codification of an act passed by the General Assembly at its session 1871-72, chapter 193, section 32.
In
Wooten v. Wooten,
123 N. C., 219, 31 S. E., 491, speaking to this statute, the Court said: “This changed (the) rule of common law, which was that personalty of the wife did not go to the husband when he died without having reduced it to possession by administration. And further, in conformity to this change, it devolves the right of administering upon the wife’s estate upon the executor or administrator of the husband
ex oficio.”
After the enactment of this statute, two cases, pertinent to the question involved in the case at bar, were decided in this Court:
Conigland v. Smith, supra
(1878), and
Simmons v. Biggs,
99 N. C., 236, 5 S. E., 235 (1887).
In the former it is held that where a father insures his life for the benefit of his children, one of whom, a daughter, marries and dies before her father, without issue, the husband of the deceased daughter is entitled as her administrator to her share of the money arising from the policy of insurance upon the death of the father.
In the latter, the Court held that where a husband insures his life for the benefit of his wife and children and the wife dies intestate before her husband, leaving children, her interest after the payment of her debts would go to the husband, if living, as sole distributee, but he being dead, his personal representative shall hold and administer the same as an asset of his estate.
These two cases were decided prior to the enactment of chapter 166, Public Laws 1913, as amended by chapter 37, Public Laws 1915, and by chapter 54, Public Laws 1921 — C. S., 137 (8) — in which, in effect, the General Assembly modified the provisions of section 7 of the Consolidated Statutes of 1919 in eases where a married woman dies intestate leaving husband and child or representative of deceased child. But, there has been no modification of the section in cases where a married woman dies intestate, leaving husband, but neither child nor representative of deceased child.
Applying these principles to the case in hand, there is error in the judgment below and the same should be, and is hereby, modified in accordance with this opinion.
The judgment below as here modified is affirmed.
Modified and affirmed.