Duke's Will, In re, 391
Citation | 241 N.C. 344,85 S.E.2d 332 |
Decision Date | 14 January 1955 |
Docket Number | No. 391,391 |
Parties | In the Matter of the Last WILL and Testament of Hilda Smith DUKE, Deceased. |
Court | United 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.
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: .
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...
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