Enloe v. Sherrill

• Decision Date: 31 December 1845
• Citation: 6 Ired. 212,28 N.C. 212
• Court: North Carolina Supreme Court
• Parties: WESLEY M. ENLOE et al. v. UTE SHERRILL et al.

6 Ired. 212

28 N.C. 212

WESLEY M. ENLOE et al.

v.UTE SHERRILL et al.

Supreme Court of North Carolina.

December Term, 1845.

A petition was filed for the re-probate of a will on the ground that the supposed testator was non compos mentis. A. and B. his wife, joined in the petition, she being one of the next of kin. Afterwards, A. the husband, caused himself to be joined with the executors in propounding the will, leaving his wife still one of the caveators. Held that, on the trial of the issue devisavit vel non, the declarations of A. were not admissible in evidence to prove the incapacity of the supposed testator.

An issue to try the validity of a will is not an adversary suit--there are strictly no parties to it.

Where a will is propounded, if the executor decline to prove it, or if there is ground for believing that the executor will not faithfully perform his duty, the Court will permit any person, who is interested in supporting the will, to join with the executor in propounding it, or to propound it alone. But the party applying for such an order must shew that he is not a mere intruder, but that he either has, or believes he has, an interest in establishing the will.

When the declarations of any party to an issue devisavit vel non are admitted in evidence, it is because of the rule, that the declarations of any one against his interest is legal testimony as against him.

The cases of St. John's Lodge v. Callender, 4 Ired, 343, and McCrainey v. Clark, No. Ca. T. R. 278, cited and approved.

Appeal from the Superior Court of Law of

Haywood County, at the Fall Term, 1845, his Honor Judge BAILEY presiding.

At the Spring term, 1843, of the Court of Pleas and Quarter Sessions of Haywood County, a paper writing, purporting to be the last will and testament of Abraham Enloe, deceased, was, by the executor therein named, brought forward and propounded to the Court for probate. It was admitted to probate in the common form. At the same term, some of the next of kin of Abraham Enloe filed a petition for re-probate, which was ordered by the Court. Among the petitioners were John Mingus and his wife Mary, the latter being one of the children of the deceased, and entitled, if the paper was rejected as the last will and testament of Abraham Enloe, to a distributive share of his estate. Upon setting aside the probate first had, the Court ordered an issue to be made up, of devisavit vel non, and the petitioners, including John Mingus and his wife Mary, were made caveators. After the case had been so pending for some time, John Mingus came into Court, and had himself made a party, as one of the propounders with the executors, his wife still remaining a caveator. Upon the trial of the issue in the Superior Court, the defendants contended that the paper writing was obtained from the deceased by the undue influence of his wife, and in order to show it, offered in evidence the declarations of John Mingus, who wrote the will, which declarations were made immediately after the death of A. Enloe. The evidence was objected on the part of the executors, but was received by the Court. A verdict having been rendered for the defendants, the plaintiffs appealed.

Guion, for the plaintiffs .

Francis, for the defendants .

NASH, J.

John Mingus and his wife were among the petitioners to set aside the probate of the will. When the order is made, and the issue made up, they take their position on the record, as opponents of the will; shortly after, without any reason assigned, he is transferred from the opposing to the propounding side of the issue. For what purpose is this done? No reason is assigned, but it lies too near the surface to be hidden. It became necessary to use his declarations in evidence, to defeat the will. While he continued a caveator, this could not be done, and the bungling device is resorted to by him, of taking his place among those who were endeavoring to establish the script. But why, if his testimony was so important, did he not present himself as a witness in the case, in behalf of the caveators? They, doubtless, would have been willing. But it did not suit the purposes or views of the parties. It was much more convenient to take his declarations, than to subject him to a cross-examination upon oath, which might have shewn that his opinion in the matter was worth nothing. By transposing his name, he was enabled to obtain the benefit of his own testimony, to subserve his own interest. He was a party to the issue in no other light, than as the husband of his wife; as John Mingus, he had no...