Crowell v. Kirk

• Decision Date: 31 December 1832
• Citation: 14 N.C. 355
• Court: North Carolina Supreme Court
• Parties: GEORGE CROWELL v. STEPHEN KIRK ET AL.

14 N.C. 355

GEORGE CROWELL

v.STEPHEN KIRK ET AL.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1832

1. A party is not bound to offer an incompetent witness in order that his adversary may waive the objection and cross-examine him.

2. Per DANIEL, J. An attesting witness may be asked his opinion of the testator's sanity, but the same question to another witness is improper.

3. Per RUFFIN, J. An attesting witness is the witness of the law, and may be discredited by any one who examines him.

THIS was an issue as to the validity of the will of one Buckner Kimball, tried on the last spring circuit, at MONTGOMERY, before Norwood, J. The plaintiff and one George Kirk were the attesting witnesses. In the will a legacy was given to Harris Kimball, who was dead, whose daughter the plaintiff had married, after the death of the testator. This fact, together with the nonresidence of Kirk, the other attesting witness, having been proved to account for the plaintiff's not producing them, the case was, on his side, left to the jury, upon proof of the handwriting of the attesting witnesses, and the examination of the person who drafted the will. There being some obscurity in the rest of the statement certified with the record, a literal copy of it is given:

"The defendants called and examined George Crowell (the plaintiff), and he (the witness) also proved the legal execution of the will, and the subscription of the witnesses in the presence of the testator. The defendants examined William Harris, who gave evidence that Buckner Kimball died about two years ago, in old age; that hewas very intemperate, and always drunk when he could get liquor, and when drunk talked much, and was wilder than drunken men usually are; that he was sometimes sober and sometimes drunk, and

when sober was in his proper mind and talked but little; that he saw him sometimes at home, in the latter part of his life, sober and in his senses. The defendant's counsel then asked the witness, 'Is it your opinion that Buckner Kimball was at the time, etc., capable of making a will?' This question was objected to and overruled by the court, with an observation that it could not then be asked, as there was no evidence before the jury that the testator was insane."

An affirmative verdict was returned and the defendant appealed.

DANIEL, J. By the Act of 1789, Rev., ch. 308, contested wills shall be proved by all the living witnesses if to be found, and by such other persons as may be produced to support it. In the present case one of the subscribing witnesses had removed from the State, and the other had become interested, by marrying a woman who claimed an interest in a legacy given by the will, if it should be established. When one of the attesting witnesses is abroad, it seems to be sufficient, as in other instances of instrumentary proof to give evidence of his handwriting. Starkie Ev., 1693; Jackson v. Van Dusen, 5 John. R., 144. It is, upon this testimony, left to the jury to presume that the witness subscribed the will in the presence of the testator. Croft v. Pawlet, Str., 1109.

The defendant's counsel asked his own witness, Harris, if, in his opinion, the testator was capable of making a will. An objection being made, the witness was not permitted to answer the question. I do not think that the judge erred in this. The opinions of witnesses, in England, are confined to persons of science, art or skill in someparticular branch of business, and they have to give the reasons upon which their opinions are founded. All other witnesses are to state the facts, and the jury make up their opinion on the facts thus deposed to. In this country the courts have said that the law placed the subscribing witness about the testator to ascertain and judge of his capacity. Heyward v. Hazard, 1 Bay., 335; Chase v. Lincoln, 3 Mass. R., 237; Poole v. Richardson, ibid., 330. But no case has gone the length of permitting the evidence of opinion, offered in this case, to go to the jury. The judgment should be affirmed.

RUFFIN, J. I do not perceive the force of the objection to the opinion of the court upon the first...