Bell v. Clark
| Decision Date | 31 December 1848 |
| Citation | 31 N.C. 239,9 Ired. 239 |
| Court | North Carolina Supreme Court |
| Parties | THOMAS BELL v. WILLIAM CLARK et al. |
In an issue of devisavit vel non where the subscribing witnesses to the supposed will disagree as to the capacity of the supposed testator, other proof may be given as to that fact and the jury must decide upon the whole evidence.
The cases of Crowell v. Kirk, 3 Dev. 355, Holloway v. Lawrence, 1 Hawk. 49, and Clary v. Clary, 2 Ired. 78, cited and approved.
Appeal from the Superior Court of Law of Chatham County, at the Fall Term, 1848, his Honor Judge CALDWELL presiding.
This was an issue of devisavit vel non, as to an instrument dated November 28th, 1843, and propounded as the will of Elijah Bell. It had two subscribing witnesses, and they were both examined. One of them, Lassiter, deposed that he was sent for by the deceased to write his will, but that he was unable to do so, because he had the rheumatism, and that the deceased then requested his brother, Thomas Bell, to write it and he did so: that he, the witness, was present when the will was written, and thought the testator had understanding and capacity to make a will: that he was, however, drinking during the time, and became a good deal intoxicated, but that he knew what he was doing, and dictated the dispositions of property contained in the will: that after it was written it was read over to the deceased and approved and executed by him, and at his request then attested by himself and the other witness: that the deceased then handed the paper to this witness to keep, and that he kept it in his possession until April 1847, when one Farrar brought him a message from the deceased, requesting him to carry the will to him: that he accordingly did so, and that the deceased asked that it should be read to him, which the witness did in the presence of Farrar: and that the deceased then said he was satisfied with it, and directed that it should be put into his desk, which was done, and that it was found there upon the death of the party in June following.
The other subscribing witness, Neal, deposed, that on the day the will bears date, he went to the house of the deceased for the purpose of collecting money from him, as a constable, and the deceased requested him to witness a paper, which he acknowledged; and that he did so without knowing the character of the paper, though he suspected that it was a will; and that Thomas Bell and the witness were present. He further stated, that the deceased was drinking at the time and considerably intoxicated, and in his opinion was not capable of transacting business generally.
Farrar testified, that he was a neighbour of the deceased, and that in April 1847, the deceased was sick and sent for him, and that he went and stayed with him two or three days; that the deceased was then perfectly sober, not having drank any spirits for several weeks: that he requested the witness to call on Lassiter and ask him to bring him his will; and that he did so and Lassiter immediately brought it: that it was then read by Lassiter to the deceased in the presence of the witness, and he said it was his will and that he was satisfied with it, and directed that it should be put into his desk; that the deceased was then of sound mind, and died in June thereafter.
A physician deposed, that he attended the deceased six or seven days before he died: that he was then rational, and told over to him the contents of his will, which corresponded with it, when he heard it read after his death.
Another witness stated, that he lived with the deceased in 1844; when drinking, he frequently spoke of his will, and told the witness its contents and they corresponded with the will as read on the trial.
Another witness deposed, that the deceased told him before the will was made, that he intended making one, and that about three weeks after it was made, the deceased told over its provisions to him, and that he was rational at the time of those conversations.
The deceased was unmarried and had no children, and, after giving away parts of his property to several collateral relations, he gave the bulk of it to his brother, Thomas Bell, whom he made residuary legatee and executor, and who is the propounder.
The counsel for the caveators contended, that unless both of the subscribing witnesses testified to the capacity of the deceased, the paper was not well proved; and that the subsequent declarations and conduct of the deceased were not...
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State v. Tilley
...to a will or other instrument, whom the law compels him to call. Smith v. Atlantic & C. Air Line R. Co. supra; Hice v. Cox, supra; Bell v. Clark, 31 N.C. 239; Crowell v. Kirk, 14 N.C. 355. A witness of this character is said to be the witness of the law rather than the witness of the party ......
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In Re Deyton's Will.
...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 Ruffln. The law makes two subscribing witnesses to a will i......
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In re Deyton's Will
...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 Boone v. Lewis, 103 N.C. 40, 9 S.E. 644, 14 Am. St. Rep. 783, where Justice Merrimon said that-- The "grossest inju......
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Ellis' Will, In re
...ought not to be lost, but its due execution and attestation should be found on other credible evidence. And so the law provides. ' Bell v. Clark, 31 N.C. 239; In re Will of Deyton, 177 N.C. 494, 99 S.E. 424, 428; In re Will of Redding, supra. 'The law seems to be settled in this state that ......