In re Will of Deyton

177 N.C. 494

• Court: Supreme Court of North Carolina
• Decided: May 21, 1919
• Status: Published

Opinion

Waiker, J".,

after stating the case: As the judge gave a peremptory instruction^ to the jury that the issue should be answered “No,” the evidence must be taken as true and considered in the most favorable view for the propounders, and if there is any inference of fact which the jury may have drawn from it, and which would sustain the paper-writing, or either of them, as the will of the deceased, the charge was erroneous, and we are of the opinion that there was such evidence.

The legal effect of a directed verdict is the same as that of a nonsuit or dismissal under the statute (Hinsdale Act), the court does not weigh the evidence, but assumes it to be true in favor of the defeated party. Cases directly in point are Hodges v. So. Ry. Co., 122 N. C., 992; Brown v. A. C. L. R. R. Co., 161 N. C., 513; Horton v. F. C. Telephone Co., 146 N. C., 429; Embler v. Gloucaster Lumber Co., 167 N. C., 457; Denny v. Burlington, 155 N. C., 33; and as to effect of nonsuit in this respect, Brittain v. Westall, 135 N. C., 492; Cotton v. R. R., 149 N. C., 227; Deppe v. R. R., 152 N. C., 79; Young v. Champion Fibre Co., 159 N. C., 375.

Applying this familiar rule to the evidence as it appears in the record, we conclude that there was some proof from which the jury may have correctly drawn inferences favorable to the propounders, and that it should have been referred to the jury with proper instructions on the. law. We have set forth only enough of the evidence to show that there, was some, at least, which favored the propounders’ contention, that is, only a substantial and material part of it. We are not advised by the charge as to what whs the particular and fatal defect in the proof. The testator was of sound mind, unusually bright, as said by one of the witnesses, and in full possession and use of her mental faculties. There is evidence that she had signed the papers and had them signed by one of the subscribing witnesses, and asked Mrs. Bates to call in Miss Annie Stepp to subscribe as the other witness to her will. This Mrs. Bates and Miss Stepp did, in compliance with decedent’s request, and it is perfectly manifest that the latter knew the paper and its contents, and there is evidence that both witnesses signed the paper,' as witnesses to it, in testator’s presence and with her knowledge. The testimony of Mrs. Gale shows this to be the case, and there is more besides. The circumstances and surroundings are some evidence of it, from which the jury may reasonably infer the ultimate fact of the will’s execution. It is not required that subscribing witnesses should sign in the presence of each other, Watson v. Hinson, 162 N. C., 72; Collins v. Collins, 125 N. C., 104; Eelbeck Devisees v. Granberry, 3 N. C., 232; Rev., sec. 3113, nor is it necessary that the will should have been attested in the same room, provided the witnesses signed it, where the testator could see them do so; that- is, could see them sign tbe very paper that she had signed, so as to prevent the substitution of the genuine paper for another and spurious one. It was held in Graham v. Graham, 32 N. C., 219: “A will is well attested by subscribing witnesses when, though not in the same room with the testator, they are in such a situation that the testator either sees or has it in his power to see that they are subscribing, as witnesses, the same paper he had signed as his will. Where the supposed testator could only see the backs of the witnesses, but not the paper they were subscribing : Held, that the paper-writing was not well attested as a will.” See, also, Cornelius v. Cornelius, 52 N. C., 593; Bynum v. Bynum, 33 N. C., 632. “Generally the witnesses are not required to subscribe the . will at the express request of the testator. He need not formally request the witness to attest his will as the request may be implied from his acts and from the circumstances attending the execution- of the will. Thus a request will be implied from the testator’s asking that the witness be summoned to attest the will, or by his acquiescence in a request by another that' the will be signed by the witnesses.” Thompson on Wills, 449; In re Herring’s Will, 152 N. C., 258; Burney v. Allen, 125 N. C., 314; In re Cherry’s Will, 164 N. C., 363. Testator must have seen the witnesses, or have been able to do so at the time of the attestation in the position he then was. Jones v. Tuck, 48 N. C., 202. There is another important question here which is raised by the apparently conflicting testimony of Mrs. Gale and Mrs. Annie Stepp Suttles as to where the papers were witnessed and subscribed by the latter. The law seems to be settled in this State that parties are not to be bound or concluded by the testimony of one of the subscribing witnesses, but may show the very truth of the matter by other testimony. As determined with us, the principle may be thus substantially stated and it is well supported by Bell v. Clark, 31 N. C., 239, in which the opinion was delivered by that eminent jurist, Chief Justice Ruffin. The law makes two subscribing witnesses to a will indispensable to its formal execution. But its validity does not depend solely upon the testimony of those witnesses. If their memory fail, so that they forget their attestation, or they be so wanting in integrity as wilfully to deny it, the will ought not to be lost, but its due execution and attestation should be found on other credible evidence. The leading case on this point is that of Lowe v. Joliffe, 1 Bl., 365, which' was a remarkable one, and fully establishes this position. It has never, we believe, been questioned, but has-been always spoken of with approbation. In Jackson v. Christman, 4 Wend., 277, it was laid down as undoubted law that if-the subscribing witnesses all swear that the will .was not duly exe-, cuted, yet it may be supported by other witnesses or circumstances. In this Court, Lowe v. Joliffe has been always understood to be law. Crowell v. Kirk, 14 N. C., 355. For although the law requires all the witnesses to be called, if within the jurisdiction, it would be most unreasonable to conclude the party calling them, as to the execution of a will, more than in respect to any other instrument. The obligee must call the subscribing witnesses to a bond, but as his testimony that it was executed does not conclusively prove it, so his denial of his attestation or of-the execution by the obligor does not absolutely destroy it, but the parties may give other evidences that it was or was not duly ■executed. Holloway v. Lawrence, 8 N. C., 49; 1 Phil. Evi., 475, and the cases cited. The same reason applies to a will with even more ■force. And again, as was said in Crowell v. Kirk, supra, the subscribing witness to a will is rather the witness of the law than of the party -calling him, and therefore the party is not bound to take his testimony •as true, but ought to be at liberty to contradict and discredit him. It is impossible the Legislature should mean that one of the most solemn •acts of a man’s life should be defeated by the perjury of one man, or indeed any number of men; and much less by.his defect of memory or ■of a discrimination to judge correctly of the party’s strength of understanding. For as it is in respect of the fact of execution, so it must be in respect to the capacity of the party deceased, whether the defect be alleged to arise from insanity or the less permanent cause of intoxication. The jury are not confined to the opinions given by the subscribing witnesses on that point, nor to the facts on which they say they formed their opinions, but may take their judgment from other sources on which they rely more. The case of Bell v. Clark, supra, has since been approved in Boone v. Lewis, 103 N. C., 40, where Justice Merrimon said that the “grossest injustice would result if the law was otherwise.” “The maker of a will,” said the- present Chief Justice, “can make an acknowledgment of his signature by words, and if you find there was such acknowledgment that will be sufficient acknowledgment under the law. It must also be witnessed in the presence of the party making the will, and he must either see the witnesses sign it or he must be in position to see them sign it, and to see if they are signing the paper-writing that he signed, . . .' they must also sign as a witness at his request. It is not necessary, however, that he should make the request himself. If he authorizes some one else to get witnesses and ask them to sign it, then the party that he sends out will .act as agent, and a request made by said person would be the request of the party signing the will.” In re Herring's Will, supra. The material portion of the evidence bearing upon this phase of the case is as follows: “She asked us to get a paper so she could make her will. She asked Mrs. Bates to write it. Stated what she wanted each one to have. Mrs. Bates read it over to her, and she said it was all right and signed it. I signed it at ber request. I beard Miss Deyton ask Mrs. Bates to go for her (Miss Stepp) to witness the will. When I signed it Miss Margaret was looking at me. After Miss Stepp came in she was told about the will. I saw Miss Stepp sign. Miss Deyton certainly was in position to see ber sign it. The second card, Exhibit ‘B,’ was written in my presence, and Miss Margaret signed it in my presence. Miss Stepp was in the room. This second paper was not signed by Miss Stepp in another room entirely. Both of them were-signed in Miss Margaret’s presence.”

The other attesting witness, Mrs. Annie Stepp Suttles, notwithstanding her relation to the parties and the cause, testified: “I signed the-paper identified as Exhibit 1A’ as a witness. I also signed the paper identified as Exhibit ‘B.’ I signed the first paper, Exhibit ‘A,’ in the-room where Margaret was. I signed the second paper, Exhibit ‘B,’ just across the hall from Margaret’s room; in Mrs. Pickens’ room. I do not remember whether the doors were open. I signed Exhibit ‘A’’ in the room where Margaret was present. The only person that said' anything to me about the paper was Mrs. Bates. She told me to sign it. Told me what she wanted me to'sign. Miss Margaret was lying-on her back in bed. She could see me sign if she had been looking.”

The testatrix having requested Mrs. Bates to call Miss Annie Stepp-as a witness to her will, and having announced to her in the presence-of Miss Deyton that the latter desired her to witness ’her will, Miss-Stepp, in the presence of Miss Deyton, and in clear view of her, signed. Exhibit “A” as a witness. As to that portion of the .will marked Exhibit “B,” the caveator contends that it was not signed by the witness,. Annie Stepp, in the presence of the testatrix, and this is the evidence-of the witness Annie Stepp, but the other witness, Mrs. Gale, who was-entirely disinterested and not related to any of the parties, testified tbht Miss Stepp signed Exhibit “B,” also in the presence of the-testatrix.

It was not necessary that the testatrix should have signed the paper,, as her will, in the presence of the witnesses, provided she afterwards-acknowledged it before them. Burney v. Allen, 125 N. C., 314; Umstead v. Bowling, 150 N. C., 507; In re Herring’s Will, supra; In re Cherry’s Will, 164 N. C., 363. The material issues in a case, raised by the pleadings, should be passed upon by a jury and not by the court, without consent of the parties. Pasour v. Lineberger, 90 N. C., 159; Whitehurst v. Davis, 3 N. C., 113; Smith v. Campbell, 10 N. C., 590. Where there is conflicting evidence it should be left to the jury to settle the-matter by a finding under correct instructions from the court. In re Snow’s Will, 128 N. C., 100; In re Bowling, 150 N. C., 507.

A will has been defined to be a disposition of property to take effect. on or after the death of the owner of it. 40 Cyc., 990; and also as the just sentence of our will touching what we would have done with our estate after death. Payne v. Sale, 22 N. C., 457. Exhibit “A” in this ease appears to bear evidence of its disposition or character, for it expressly refers to the things given by the maker of it as her “bequests,” a word appropriate to a will of property (Smith v. Eason, 49 N. C., 34), and it is often employed by the unskilled or unlearned to describe both kinds of property. Her intention to make it her will could fairly be inferred from the language and general appearance of the document. As to the second, Exhibit “B,” it has some resemblance to a will or a part of one, was subscribed by the same witnesses, and executed on the same day as Exhibit “A.” The Chief Justice says in the case of In re Edwards, 172 N. C., 369, 371: “No particular form of expression is necessary to constitute a legal disposition of property by will. Although apt words. are not used, and the language is inartificial, the-Court will give effect to it where the intent is apparent, says Brown, J., in Kerr v. Girdwood, 138 N. C., 473; citing Henry v. Ballard, 4 N. C., 396, and In re Belcher, 66 N. C., 54, to the above purport, that, ‘Form will be discarded, and has been, so that an instrument in form a deed has been held to be a will.’ The subject is fully discussed with ample citation in Morrison v. Bartlett (Ky.), 41 L. R. A., 39. In the notes to this case are many interesting cases in which instruments in the form of a contract, acknowledgments of indebtedness, assignments, endorsements, bank deposits, commercial paper, leases, powers of attorney, orders on executors, and other informal papers are held to be sufficient as wills when the intent sufficiently appears that there is to be a disposition of the testator’s property after death.” Kerr v. Girdwood, 138 N. C., 473, cited above, is reported with notes in 107 Am. St., 551, which cite Ferris v. Nelville, 89 Am. St., 486, where the subject is fully discussed in a very illuminating monograph. In 40 Cyc., 1091, it is-said: “It is not necessary that any particular form of words be used to make a will. Any writing to take effect at death may constitute a will.” The power to devise is purely statutory (In re Will of Garland, 160 N. C., 555), and our statute does not require any particular form. ■ The instruments here appear to be of a testamentary character, and if properly identified and linked together as parts of the same instrument, and legally attested, they may operate as the will of the decedent. But. • the facts must be found by the jury, in order that we may pass upon the validity of the paper-writings as the will of the deceased.

• A careful examination of the case convinces us that there was error-in virtually withdrawing the case from the jury.

New trial.