Crenshaw v. Johnson

• Decision Date: 09 March 1897
• Citation: 26 S.E. 810,120 N.C. 270
• Parties: CRENSHAW et al. v. JOHNSON et al.
• Court: North Carolina Supreme Court

26 S.E. 810

120 N.C. 270

CRENSHAW et al. v. JOHNSON et al.

Supreme Court of North Carolina

March 9, 1897

Appeal from superior court, Granville county; Coble, Judge.

Henry A. Crenshaw and others propounded a paper as the last will of John Johnson, deceased. The paper was proved ex parte before the clerk, and a caveat filed thereto by W. C. Johnson and others, contestants. From a judgment establishing the will contestants appeal. Affirmed.

It is not proper cross-examination to ask a subscribing witness to a will as to statements made by him regarding the mental capacity of testator, where his examination in chief was confined to the execution of the instrument.

Winston Fuller & Biggs, for appellants.

Edwards & Royster and W. M. Person, for appellees.

MONTGOMERY J.

The will of the decedent, John Johnson, was proved in common form; and, upon a caveat being filed, the issue joined thereby was sent up by the clerk to the next term of the superior court for trial. The caveators assigned as reasons why the alleged will was not the will of the decedent (1) that he was not, at the time of its execution, of sound mind and disposing memory; (2) that he was unduly influenced in its execution by those by whom he was surrounded, and especially by his wife, the sole devisee and legatee.

The first exception of the caveators was to the ruling of his honor that it was not necessary for the propounders to file an answer to the caveat. No answer was necessary. The issue as to whether a paper writing is the will of the decedent is made up upon the filing of the caveat. Eaton, Forms, p. 446.

The next exception was to the reading of the paper writing in evidence; the caveators contending that the witness Wimbish who was also a subscribing witness to the script, had not identified the same as the paper which was really executed by the decedent. There is nothing in the exception. The writing was shown to the witness, and he said that the same was the paper which the defendant signed as his will after it had been read over to all present, and that the witness and D. S Osborn (now deceased), the other witness to the paper, signed the same in the presence of the decedent, and at his request. The witness Wimbish, on cross-examination by the caveators, was asked what he had said, when the will was proved before the clerk, as to the mental capacity of the decedent. His honor properly refused to allow this question to be put. The witness had not been asked on his examination in chief a word about the mental condition of the decedent, nor on his cross-examination. The only purpose of the question must have been to contradict the witness, and he had made no statement about it one way or another.

Another exception was to the refusal of the court to allow Taylor, a witness for the caveators, to testify as to what Osborn, a deceased witness to the execution of the will, had told him about the mental condition of the decedent both before and after the execution of the paper writing. His honor's ruling was correct. The testimony offered was nothing but hearsay evidence.

The exceptions from 11 to 27 were to the form of questions put to witnesses by the propounders to show testamentary capacity. They were leading, all of them; but the judge, in his discretion, allowed them to be asked, and we cannot review them.

At the close of the evidence the caveators asked the court to instruct the jury as follows: "(1) That there has not been evidence sufficient to admit the alleged will to probate, in that the evidence of F. B. Wimbish, the subscribing witness, is not sufficient to establish the due execution of the same. (2) There is no evidence in this case that the alleged will has been admitted to probate, and, this being true, the alleged will cannot be offered in evidence in this suit." The court properly refused to give the instructions asked. As we have already said, the testimony of the witness Wimbish was sufficient to have the will put in evidence for the purpose of establishing its execution by the decedent. He identified the paper, saw the decedent sign it after it had been read over to him, and both himself and Osborn, the other subscribing witness, signed it in the presence of the decedent, and at his request. The probate of the will before the clerk was a matter totally immaterial in its relation to the trial in the superior court. The result of the trial in the superior court was to be the overthrow of the alleged will, or its probate afresh in that court. There is no merit in exceptions 30, 31, 32, 33, and 34.

The caveators made exception to that part of his honor's charge where he said: "Was he (said Johnson) able to understand what he was about? If so, then he was of sound mind and memory, within the meaning of the law; if not, he had not testamentary capacity." This exception was a part of eight...