Duke's Will, In re, 391

Citation241 N.C. 344,85 S.E.2d 332
Decision Date14 January 1955
Docket NumberNo. 391,391
PartiesIn the Matter of the Last WILL and Testament of Hilda Smith DUKE, Deceased.
CourtUnited States State Supreme Court of North Carolina

Owens & Langley, Allen & Allen, Kinston, L. J. Phipps, Chapel Hill, for propounders appellees.

Jones, Reed & Griffin, Kinston, for caveators appellants.

WINBORNE, Justice.

While caveators, the appellants, bring up and present for decision four or more assignments of error, only two require express consideration, and in them prejudicial error is not made to appear.

The first assignment of error so presented in brief of caveators is based upon exceptions Numbers 7 and 8, in respect to the testimony of the witness Guy Elliott last given as shown in the foregoing statement of the case. As to this, the caveators contend that declarations of Garland L. Duke, a beneficiary under the will of Hilda Smith Duke, are incompetent as hearsay and self-serving declarations, and that they are also incompetent under the best evidence rule.

At the outset, the setting under which the testimony was offered must be kept in mind. Here the caveators had offered testimony tending to show that bad relationship existed between the testatrix, Mrs. Duke, and her husband, and that he was the beneficiary under her will.

And it is manifest that propounders were countering with declaration of the husband as tending to show his state of mind in refutation of the charges of bad relationship between him and his wife. For this purpose the declaration was competent. We find it declared in Stansbury's N.C.Evidence, Section 141, that 'If a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay'. State v. Griffis, 25 N.C. 504; Falls v. Gamble, 66 N.C. 455.

In the Griffis case the Court in opinion by Gaston, J., said: 'The testimony to which the defendant has excepted is not liable to the objection that it is 'hearsay evidence'. It was not offered to show the truth of what the defendant's father had said, but simply to prove the fact that he made such a declaration. If that fact became material or relevant to the inquiry before the jury, certainly testimony of the fact was proper'.

Indeed, in 57 Am.Jur. 300, Section 419, the author states: 'The declarations of a beneficiary may be admissible on the issue of undue influence under an exception to the hearsay rule, such for example, as one applicable where the declarant is dead'; and that 'they may also be admissible when they are offered, not as proof of the fact asserted, but as original evidence establishing a state of mind * * *.' And again in Section 422, page 302, it is said: 'A declaration of the beneficiary is also admissible, not under any exception to the hearsay rule, but as original evidence, to show the attitude, affection or relation between the declarant and the testator.'

Moreover, the author continues: 'While in some cases the...

To continue reading

Request your trial
4 cases
  • State v. Thomas, 657
    • United States
    • United States State Supreme Court of North Carolina
    • 14 Enero 1955
    ...... One of the deputy sheriffs told him something like 'It will be better for you, if you confess, and it will be bad on you, if you don't confess. We got you. ......
  • Wilson v. Hartford Acc. & Indem. Co., 685
    • United States
    • United States State Supreme Court of North Carolina
    • 13 Diciembre 1967
    ...... In re Will of Duke, 241 N.C. 344, 85 S.E.2d 332; Stansbury, North Carolina Evidence, 2d Ed., § 138; Wigmore ......
  • Harrington's Will, In re
    • United States
    • United States State Supreme Court of North Carolina
    • 2 Marzo 1960
    ...similar to that given by the court on the second, third and fourth issues is not erroneous. This Court, in the case of In re Will of Duke, 241 N.C. 344, 85 S.E.2d 332, 336, said: "The court instructs you the burden of that issue is upon the propounders to satisfy the jury upon the evidence ......
  • Bullock v. Insurance Co. of North America, 7818SC145
    • United States
    • Court of Appeal of North Carolina (US)
    • 16 Enero 1979
    ...of the truth of the facts asserted in the statement. Wilson v. Indemnity Co., 272 N.C. 183, 158 S.E.2d 1 (1967); In re Will of Duke, 241 N.C. 344, 85 S.E.2d 332 (1955); State v. Dilliard, 223 N.C. 446, 27 S.E.2d 85 (1943); State v. Griffis, 25 N.C. 504 Here, Parker's statement was not offer......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT