Chambers v. McDaniel

• Decision Date: 31 December 1845
• Parties: WILLIAM P. CHAMBERS et al. v. JOHN C. MCDANIEL et al.
• Court: North Carolina Supreme Court

6 Ired. 226

28 N.C. 226

WILLIAM P. CHAMBERS et al.

v.JOHN C. MCDANIEL et al.

Supreme Court of North Carolina.

December Term, 1845.

If a testator in his will refers expressly to another paper, and the will is duly executed and attested, that paper, whether attested or not, makes part of the will; but the instrument referred to must be so described, as to manifest distinctly what the paper is, that is meant to be incorporated; and the reference must be to a paper already written, and not to one to be written subsequently to the date of the will.

Appeal from the Superior Court of Law of Caswell County, at the Fall Term, 1845, his Honor Judge DICK presiding.

In this case, a paper writing, purporting to be the last will and testament of William McDaniel, dec'd., was offered for probate, and being contested, an issue of devisavit vel non was made up. An appeal having been taken from the judgment below to the Superior Court, the following case agreed was then submitted to the Court:

At the Court of Pleas and Quarter Sessions of Caswell County, at January Term, 1832, the original paper, of which the following is a copy, was duly proved and recorded as the last will and testament of William McDaniel, dec'd. to-wit: “In the name of God. Amen. I, William McDaniel, &c., do make and ordain this to be my last will and testament, in manner and form following, viz: First. It is my will and desire, that after my decease, all my just debts shall be paid out of my estate. Second. It is my will and desire, that, after my decease and the decease of my wife, Jane McDaniel, that all my property of every description, real and personal, which has not heretofore been deeded away by me, shall be sold by my executors, and the proceeds thereof shall be equally divided between all the children of my son, John McDaniel, and all the children of my deceased daughter, Elizabeth Darby, except the sum of One Hundred dollars, which said sum of One Hundred dollars shall be equally divided between my two grand-daughters, Matilda Leigh and Juliet Leigh, and my daughter, Polly Leigh, wife of the said William Leigh. Thirdly. It is my will and desire, that after the death of myself and wife, that my son, Hiram McDaniel, shall have two negro men, Ben and Ned, they having been before deeded to him; also, One Hundred dollars, to be paid him out of the proceeds of my estate, in lieu of a negro girl, named Eliza, which I once deeded to my son, the said Hiram. Fourthly. It is my will and desire, that my grand-children, John J. McDaniel and Johnston McDaniel, sons of my son, William McDaniel, dec'd., shall have, whenever they apply for them, a negro woman, Tinney, and her three youngest children, namely, Delsey, Sarah and the youngest boy, to them and their heirs forever.”

The will then appoints executors, &c. This paper, in the case agreed, is called A.

At October Term, 1845, a paper writing, marked B. in the case, was propounded for probate by the plaintiffs in this suit, as a part of the last will and testament of the said William McDaniel, dec'd. It is unnecessary to set forth this paper writing in detail. It purported to be a deed of conveyance, dated in 1823, from the said William McDaniel to William W. Price, for certain slaves and other personal property, for the sole and separate use of Sally Price, daughter of William McDaniel, for and during her natural life, and, after her death, the property to be conveyed to her children. This deed had subscribing witnesses, and was duly proved at July Term, 1823, and subsequently registered. The deed reserved to William McDaniel and his wife a life estate in the said property.

The defendants, by an order of the Court, were summoned to see proceedings and were regularly made parties thereto. Whereupon, an issue devisavit vel non, as to this paper, was submitted to a jury, who returned their verdict that the said paper writing was not the last will and testament of William McDaniel, dec'd., or any part thereof; the said Court pronounced judgment accordingly, and the plaintiffs appealed to the Superior Court. And now it is agreed by the parties, that the said paper writing, marked B., was executed by...