Harper v. Harper

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, C.J.
• Citation: Harper v. Harper, 148 N.C. 453, 62 S.E. 553 (N.C. 1908)
• Decision Date: 14 October 1908
• Parties: HARPER et al. v. HARPER.

62 S.E. 553

148 N.C. 453

HARPER et al. v. HARPER.

Supreme Court of North Carolina

October 14, 1908

Appeal from Superior Court, Lenoir County; Neal, Judge.

Action by Carl C. Harper and others against H. D. Harper, Jr. From the judgment, defendant appeals. Affirmed.

Revisal 1905, § 1631, prohibiting one interested in the event of an action adversely to the decedent's personal representative from testifying to a transaction with decedent, did not prevent a witness, in an action to determine whether an instrument found in decedent's safe was his will, from testifying that witness had papers in the safe himself, on the ground that witness was interested as one of an advisory committee named in the purported will, an as yet unaccepted trust without compensation; the testimony merely serving to show, from the witness' own conduct that the safe was a proper depository for a will.

Loftin Varser & Dawson, for appellant.

Rouse & Land, for appellees.

CLARK C.J.

Action by children of deceased and the executor to determine whether the paper writing, which had been previously probated by the clerk, is the will of the deceased, and, if so, for its construction. The paper, it is admitted, was wholly in the handwriting of the deceased, and was found in his iron safe in the dental office which he occupied. The safe was locked. The combination to the safe was in possession of the son of deceased. It was in evidence that the safe was used by the deceased for keeping money, book of accounts, relics, material for teeth, and notes for money loaned. When the safe was opened this paper was found in one of the drawers with some other papers, but it does not appear whether they were valuable or not. There was a small amount of money in the safe. The other drawers were not examined when this paper writing was found. J. W. Grainger testified that he knew the handwriting of the deceased; also that he had seen the deceased use the safe for books, notes, etc., some time before he died, cannot say how long; that he (witness) "has had papers there himself." The above evidence was excepted to, but was competent to show that the safe was used for the purpose of keeping valuable papers.

The last paragraph of the evidence of J. W. Grainger was further excepted to, because he was one of the "advisory committee" named in the alleged will, and this was a transaction with the deceased and incompetent under Revisal 1905, § 1631. If it be conceded that being "one of the advisory committee"-an as yet unaccepted trust, and without compensation-made the witness, "interested in the event of the action," his "having papers in the safe himself" was not a "transaction" with the deceased, certainly not within the meaning of the statute. It was not to show any dealing with the deceased, but merely evidence that the witness considered the safe a suitable place in which to deposit papers for safe-keeping. He does not say that the deceased gave him permission, presumably he did, but the evidence is not for that purpose, but to show from the witness' own conduct that the safe was a proper depository for a will. The court charged the jury that "if they should find from the greater weight of the evidence that the deceased had at his place of business an iron safe in which he usually kept his books, accounts, and valuable material he used in the practice of his profession, his money, and notes he had taken for money loaned, and that he used the said safe for keeping his valuable papers and effects, and if you further find from the greater weight of the evidence that, a few days after the interment of the deceased, the paper writing here presented to you was found in a drawer in the said safe with the combination locked, why that would meet the requirements of a reasonably just and fair construction of the terms of the statute 'among his valuable papers'; and this would be so whether there was or was not any other paper in that particular drawer of the safe." This was excepted to, but we find no error therein. In Sheppard's Will, 128 N.C. 56, 38 S.E. 28, it is said: "The intention of the statute is that it shall appear to be a will, whose existence and place of deposit were known to the testator, and that he had it in his care and protection, preserving it as his will." This paper was found, not only in the iron safe where the deceased was shown to have kept valuables, but (though the nature of other papers in that drawer was not shown) it was written on the outside of the envelope which contained the accident insurance policies referred to and disposed of in the paper...