Dulin v. Bailey
| Citation | 90 S.E. 689 |
| Decision Date | 29 November 1916 |
| Docket Number | 481. |
| Parties | L.R.A. 1917B,556, 172 N.C. 608 v. BAILEY ET AL. DULIN |
| Court | United States State Supreme Court of North Carolina |
Appeal from Superior Court, Rowan County; Ferguson, Judge.
Action by S. J. Dulin against C. G. Bailey and others. From a nonsuit, plaintiff appeals. Reversed.
A tort action against parties alleged to have deprived plaintiff of a legacy by altering a will may be brought in the county where plaintiff resides.
Geo. W Garland, of Salisbury, for appellant.
E. L Gaither, of Mocksville, for appellees.
The complaint alleges that after the death of W. A. Bailey the defendants conspired to deprive the plaintiff and others of the benefits of his last will by removing from the paper writing to which the sheet of paper containing the alleged signature of the deceased was attached that part providing for the legacy to the plaintiff and others and substituting other provisions therefor. The plaintiff contends that thereby a previous will has been admitted to probate. In the course of the proceeding the plaintiff asked for the appointment of a commissioner to take the examination of the defendants in the nature of a bill of discovery. The defendants demurred that the complaint did not state a cause of action. The court sustained the demurrer, and held that unless the will that had been proven in common form was attacked and set aside by caveat, the plaintiff could not maintain the cause of action set out in the complaint. This put an end to the plaintiff's further progress in the cause, and he took a nonsuit and appealed.
The plaintiff is not seeking to attack the will on record, nor to probate what he alleges was a subsequent will. He is not seeking to recover anything out of the estate, but is bringing an action of tort against the parties who, as she alleges, conspired and injured her by removing the clause of and the signature to, what was a subsequent will by which she would have received a legacy. It is an action of spoliation by which she alleges the defendants have prevented her receiving the sum of money which was due her if they had not fraudulently altered and defaced the subsequent will. She alleges that she does not attempt to set up the second will because the evidence accessible to her would not prove its entire contents. She prefers, therefore, to bring this action against the defendants for their wrongdoing in fraudulently destroying the part of the will which was beneficial to herself.
Though this action seems to be of the first impression in this state, and is doubtless a very unusual one, there is foundation and reason for the action upon well-settled principles of law, and we are not entirely without precedent. In Tucker v. Phipps, 3 Atkins, 359; cited in Barnesly v. Powel, 1 Ves. Sr. 284, it was held...
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