In Re Will of Plott

Supreme Court of North Carolina

In Re Will of Plott

190 S.E. 717, 211 N.C. 451, 1937 N.C. LEXIS 120

CourtSupreme Court of North Carolina

DecidedApril 7, 1937

StatusPublished

Cited by1 cases

This text of 190 S.E. 717 (In Re Will of Plott) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Will of Plott, 190 S.E. 717, 211 N.C. 451, 1937 N.C. LEXIS 120 (N.C. 1937).

Pincite

Opinion

Devin, J.

The propounders assign as error the ruling of the court below in admitting, over their objection, the following evidence from the witness Zeb Plott, who was one of the caveators and interested in the result: “Q. What, if anything, did she (testatrix) tell you then with respect to making a will ? The court: It would only be competent as it may tend to show the execution of the will and her ability to make a will. A. She asked us to move back to the old home place, said, 'Cause Henry and his family had made her will us out and she wanted us to go back to the old home place, she wanted to live with us and see that we got our part.’ ”

While the presiding judge stated this evidence would only be competent on the question of the capacity of the deceased to make a will, it is apparent that it related solely and directly to the question of undue influence, and was incompetent. The decisions of this Court are to the effect that it is not competent for a witness who is a party, or interested in the result, to testify to declarations of the deceased, whose will is under attack, when the issue is as to undue influence. Linebarger v. Linebarger, 143 N. C., 229; In re Fowler, 159 N. C., 203; In re Chisman, 175 N. C., 420; Bissett v. Bailey, 176 N. C., 43; In re Hinton, 180 N. C., 211; Honeycutt v. Burleson, 198 N. C., 37; In re Yelverton, 198 N. C., 749; C. S., 1795.

It further appears that the declaration of the testatrix testified to was not a part of the res gestae but was made a year after the will was executed.

*453 The evidence objected to was material to the issue upon which the ease was decided, was prejudicial to the propounders, and its admission constitutes reversible error necessitating a new trial.

This disposition of the case renders unnecessary a consideration of the other questions presented by the appeal, as they may not arise on another trial.

New trial.

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Devin, J.

The propounders assign as error the ruling of the court below in admitting, over their objection, the following evidence from the witness Zeb Plott, who was one of the caveators and interested in the result: “Q. What, if anything, did she (testatrix) tell you then with respect to making a will ? The court: It would only be competent as it may tend to show the execution of the will and her ability to make a will. A. She asked us to move back to the old home place, said, 'Cause Henry and his family had made her will us out and she wanted us to go back to the old home place, she wanted to live with us and see that we got our part.’ ”

While the presiding judge stated this evidence would only be competent on the question of the capacity of the deceased to make a will, it is apparent that it related solely and directly to the question of undue influence, and was incompetent. The decisions of this Court are to the effect that it is not competent for a witness who is a party, or interested in the result, to testify to declarations of the deceased, whose will is under attack, when the issue is as to undue influence. Linebarger v. Linebarger, 143 N. C., 229; In re Fowler, 159 N. C., 203; In re Chisman, 175 N. C., 420; Bissett v. Bailey, 176 N. C., 43; In re Hinton, 180 N. C., 211; Honeycutt v. Burleson, 198 N. C., 37; In re Yelverton, 198 N. C., 749; C. S., 1795.

It further appears that the declaration of the testatrix testified to was not a part of the res gestae but was made a year after the will was executed.

*453 The evidence objected to was material to the issue upon which the ease was decided, was prejudicial to the propounders, and its admission constitutes reversible error necessitating a new trial.

This disposition of the case renders unnecessary a consideration of the other questions presented by the appeal, as they may not arise on another trial.

New trial.

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Bluebook (online)

190 S.E. 717, 211 N.C. 451, 1937 N.C. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-will-of-plott-nc-1937.

Opinion

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