Bartlett's Will, In re, 237

Decision Date30 April 1952
Docket NumberNo. 237,237
PartiesIn re BARTLETT'S WILL.
CourtNorth Carolina Supreme Court

Dees & Dees and Roy M. Sasser, all of Goldsboro, for propounders, appellees.

J. Faison Thomson and John S. Peacock, Goldsboro, for caveators, appellants.

ERVIN, Justice.

When a caveat to the probate of a paper-writing propounded as the last will and testament of a deceased person is filed with the clerk of the superior court having jurisdiction in conformity with the provisions of the statute now codified as G.S. § 31-32, and the resultant proceeding is transferred by such clerk to the trial docket of the superior court for trial of the issues of fact raised by the caveat at term in conformity to the requirements of the statute now embodied in G.S. § 31-33, the issues of fact must be tried by a jury. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330; In re will of Hine, 228 N.C. 405, 45 S.E.2d 526; In re Will of Roediger, 209 N.C. 470, 184 S.E. 74; In re Will of Rowland, 202 N.C. 373, 162 S.E. 897; In re Will of Brown, 194 N.C. 583, 140 S.E. 192; In re Will of Chisman, 175 N.C. 420, 95 S.E. 769.

The founders of our legal system intended that the right of trial by jury, whether constitutional or statutory in origin, should be a vital force rather than an empty form in the administration of justice. They realized that this could not be if the petit jury should become a mere unthinking echo of the judge's will. To forestall such eventuality, they clearly demarcated the respective functions of the judge and the jury in both civil and criminal trials in a familiar statute, which was enacted in 1796 and which originally bore this caption: 'An act to secure the impartiality of trial by jury, and to direct the conduct of judges in charges to the petit jury.' Potter's revisal, Vol. 1, ch. 452. This statute, which now appears as G.S. § 1-180, establishes these fundamental propositions: (1) That it is the duty of the judge alone to decide legal questions presented at the trial, and to instruct the jury as to the law arising on the evidence given in the case; (2) that it is the task of the jury alone to determine the facts of the case from the evidence adduced; and (3) that 'no judge, in giving a charge to the petit jury, * * * shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury '. This statute is designed to make effectual the right of every litigant 'to have his cause considered with the 'cold neutrality of the impartial judge' and the equally unbiased mind of a properly instructed jury.' Withers v. Lane, 144 N.C. 184, 56 S.E. 855, 858.

Although the statute refers in terms to the charge, it has always been construed to forbid the judge to convey to the petit jury in any manner at any stage of the trial his opinion on the facts in evidence. Bailey v. Hayman, 220 N.C. 402, 17 S.E.2d 520; Thompson v. Angel, 214 N.C. 3, 197 S.E. 618; State v. Oakley, 210 N.C. 206, 186 S.E. 244; State v. Bryant, 189 N.C. 112, 126 S.E. 107; Fourth Nat. Bank of Fayetteville v. McArthur, 168 N.C. 48, 84 S.E. 39, Ann.Cas.1917B, 1054; State v. Cook, 162 N.C. 586, 77 S.E. 759; Park v. Exum, 156 N.C. 228, 72 S.E. 309; Marcom v. Adams, 122 N.C. 222, 29 S.E. 333. As a consequence, the judge violates the statute and commits reversible error in so doing if he puts to a witness questions which convey to the jury his opinion as to what has, or has not, been proved by the testimony of such witness. State v. Perry, 231 N.C. 467, 57 S.E.2d 774; State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Bean, 211 N.C. 59, 188 S.E. 610; State v. Winckler, 210 N.C. 556, 187 S.E. 792; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381; 70 C.J., Witnesses, section 721.

The legal battle between the propounders and the caveators in the superior court revolved in the main around the crucial question whether the paper-writing propounded for probate was wholly written and subscribed by the hand of Minnie I. S. Bartlett, whose will it purports to be. G.S. § 31-3. Nobody testified that he saw the script being written. The propounders and the caveators undertook to sustain their respective positions as to the genuineness or falsity of the paper-writing by the testimony of numerous witnesses divided into these categories: (1) Expert witnesses, who compared the disputed document with allegedly genuine specimens of the decedent's handwriting, G.S. § 8-40, State v. Cofer, 205 N.C. 653, 172 S.E. 176; and (2) nonexpert witnesses, who claimed to be acquainted with the decedent's handwriting either because they had seen her write other papers, or because they had acquired competent knowledge of her handwriting in some other approved manner. Owens v. Blackwood Lumber Co., 212 N.C. 133, 193 S.E. 219; Universal Oil & Fertilizer Co. v. Burney, 174 N.C. 382, 93 S.E. 912; Morgan v. Royal Fraternal Association, 170 N.C. 75, 86 S.E. 975; Nicholson v. Eureka Lumber Co., 156 N.C. 59, 72 S.E. 86, 36 L.R.A., N.S., 162; Tuttle v. Rainey, 98 N.C. 513, 4 S.E. 475; McKonkey v. Gaylord, 46 N.C. 94; State v. Candler, 10 N.C. 393; Wigmore on Evidence, (2d Ed.), section 693.

One of the nonexpert witnesses called to the stand by the propounders was Mrs. C. G. Rose, who testified, in substance, that she received by mail each Christmas for some years next preceding the decedent's death a Christmas card purporting to bear the decedent's signature; that she obtained a knowledge of the decedent's handwriting by seeing the Christmas cards thus received by her; and that in her opinion every word of the paper-writing...

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16 cases
  • State v. Barfield
    • United States
    • United States State Supreme Court of North Carolina
    • November 6, 1979
    ...as to the handwriting of an individual provided that the witness is familiar with the handwriting of that person. In re Bartlett, 235 N.C. 489, 70 S.E.2d 482 (1952); Lee v. Beddingfield, 225 N.C. 573, 35 S.E.2d 696 (1945). Not only did she testify that she recognized her father's handwritin......
  • State v. Canipe, 291
    • United States
    • United States State Supreme Court of North Carolina
    • April 7, 1954
    ...with the 'cold neutrality of the impartial judge' and the equally unbiased mind of a properly instructed jury. In re Will of Bartlett, 235 N.C. 489, 70 S.E.2d 482. Although the statute refers in terms to the charge, it has always been construed to forbid the judge to convey to the trial jur......
  • State v. Smith
    • United States
    • United States State Supreme Court of North Carolina
    • May 6, 1980
    ...proceed with caution in propounding questions to a witness, Andrews v. Andrews, 243 N.C. 779, 92 S.E.2d 180 (1956); In re Bartlett's Will, 235 N.C. 489, 70 S.E.2d 482 (1952), we perceive no error in this instance. A judge who is presiding over a trial is a responsible participant in an orga......
  • State v. Smith
    • United States
    • United States State Supreme Court of North Carolina
    • April 7, 1954
    ...impeaching him. Counsel may do so in cross-examining a witness, but this privilege does not extend to the trial judge. In re Will of Bartlett, 235 N.C. 489, 70 S.E.2d 482; State v. Perry, 231 N.C. 467, 57 S.E.2d 774; State v. Cantrell, 230 N.C. 46, 51 S.E.2d 887; State v. Owenby, supra; Sta......
  • Request a trial to view additional results

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