Cornelius v. Brawley

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, J.
• Citation: Cornelius v. Brawley, 109 N.C. 542, 14 S.E. 78 (N.C. 1891)
• Decision Date: 15 December 1891
• Parties: CORNELIUS et al. v. BRAWLEY.

14 S.E. 78

109 N.C. 542

CORNELIUS et al. v. BRAWLEY.

Supreme Court of North Carolina

December 15, 1891

Appeal from superior court, Iredell county; GRAVES, Judge.

Action devisavit vel non by J. B. Cornelius and T. O. Brawley propounders, against V. Y. Brawley, caveator. Verdict and judgment for the propounders. The caveator appeals. Affirmed.

Hugh W Harris, for appellant.

Armfield & Turner, for appellees.

CLARK J.

The issue submitted arose on the pleadings, and was such as afforded either party opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions, and was therefore sufficient, (Humphreys v. Trustees, N. C., 13 S.E. Rep. 793, [at this term;] McAdoo v. Railroad Co., 105 N.C. 140, 11 S.E. Rep 316; Denmark v. Railroad Co., 107 N.C. 187, 12 S.E. Rep. 54; Leach v. Linde, 108 N.C. 547, 13 S.E. Rep. 212;) and, indeed, follows the precedents in such cases, (Eaton, Forms, 282.)

The issues suggested by appellant presented rather evidential than constitutive facts, and were properly rejected. Grant v. Bell, 87 N.C. 34; Patton v. Railroad Co., 96 N.C. 455, 1 S.E. Rep. 863.

The widow, who was named as a legatee and devisee in the will, was properly held competent to prove that it was found after the testator's death among his valuable papers. Code, § 589, removes disqualification on account of interest.

The witness is not disqualified, under section 590, for she does not testify as to any personal transaction or communication with the deceased, nor is she affected by section 1350, which applies only to attesting witnessess to the execution of the will. Hampton v. Hardin, 88 N.C. 596.

Indeed, as to them, section 2147 expressly provides that the attesting witness, who is also a beneficiary under the will, shall be admitted as a witness to prove its execution or validity. The disqualification imposed is not upon him as a witness, but to receive benefit under the will attested and proven by him; so that, if the witness here had even been an attesting witness to the will, the court would have been compelled to admit her as a witness. Vester v. Collins, 101 N.C. 114, 7 S.E. Rep. 687.

The charge as given was a substantial compliance with the prayers for instruction, so far as they were proper to be granted. The appellant cannot, therefore, justly complain. McDonald v. Carson, 94 N.C. 497.

Nor is there any merit in the exception that the court told the jury that the finding the paper writing among the valuable papers of decedent after his death must be proven so as to satisfy the jury by the preponderance of the evidence. It is true the appellant had introduced no evidence to contradict the evidence offered to show such finding, but he had assailed such evidence on the...