Horne v. Horne

• Citation: 9 Ired. 99,31 N.C. 99
• Parties: JOEL E. HORNE et al. v. JAMES HORNE et al.
• Decision Date: 31 December 1848
• Court: United States State Supreme Court of North Carolina

9 Ired. 99

31 N.C. 99

JOEL E. HORNE et al.

v.JAMES HORNE et al.

Supreme Court of North Carolina.

December Term, 1848.

If a testator knows what he is doing and to whom he is giving his property, his mental capacity is sufficient to enable him to make a will.

The domicil of origin of a person continues until he acquires another, by actual removing to another country with the intention of remaining in the latter altogether or for an indefinite period.

Two things must concur to constitute a domicil; first, residence, and, secondly, the intention to make it a home.

And if these two concur, it makes no difference how short his residence may be in the new domicil.

The case of Plummer v. Brandon, 5 Ire. Eq. 190, cited and approved.

Appeal from the Superior Court of Law of Anson County, at the Spring Term, 1848, his Honor Judge BAILEY presiding.

This was an issue of devisavit vel non upon a paper writing, offered for probate by the plaintiffs, as the last will and testament of Joel Horne, deceased, in which paper writing, the said plaintiffs were named as executors and only legatees. Three objections were raised by the defendants, to-wit:

1st. That the supposed testator was not of sufficient capacity to make a will, for want of a sound disposing mind and memory.

2ndly. That if not actually incapable of making a will, he was unquestionably a man of very feeble intellect, and executed his paper writing under influence and through fraud and circumvention.

3rdly. That the supposed testator was domiciled in Chesterfield District, South Carolina, and not in Anson County, North Carolina, at the time of executing said paper writing; and that the paper writing was not executed according to the laws of the former State.

Upon the first point, one of the subscribing witnesses testified fully to his belief of the sanity of the supposed testator at the time of signing the said paper writing, and the proof of the factum and subscription by two witnesses, according to the laws of North Carolina, was full, although the second subscribing witness said that he had no distinct opinion whether the supposed testator was sane or not--he having but little means of judging, having never seen him until called upon to witness his will, though he discovered nothing to make him doubt his sanity. Other witnesses, on the part of the plaintiffs, testified to their belief of his capacity to make a will, though all concurred in the belief that he was a man of weak understanding. One witness testified that three or four years before, the testator had expressed a purpose to give his property to the plaintiffs, who are, in fact, the only legatees in the will; and several of the witnesses spoke of his intention to give a part of his property to the plaintiff, Joel E. Horne, together with others, and this at different times. On the part of the defendants, four witnesses proved, that he was, in their judgment, incapable of making a will; and of these were his attending physician, and two persons, who had for some time resided in the same house with him. It was in proof, that he had 16 or 17 slaves: That one of them had great influence over him: That he had many relations equally near with the plaintiffs, to several of whom he had expressed his intention of giving property, as well as to the plaintiff, Joel E. Horne, and to one witness his intention to give his property to other relations, as near as Joel E. without mentioning him at all, and at another time a determination to make no will at all. The supposed testator was a native of Chesterfield District, South Carolina, where he had resided all his life, until a few weeks before his death, upon the part of the same plantation, on which he had been born, and where both his parents had lived and died and were buried: that he lived in a very uncomfortable way among his negroes, without any white family, having never married: that his farm was small and poor, and his slaves were so unproductive as to render it necessary for him to borrow money, which was furnished him to some extent by Joel E. Horne: that when 36 years of age, he fell into a very bad state of bodily health, and was advised by his physician to seek a place where he would be more comfortable: that accordingly, upon the invitation of Mrs. Worley, who lived in North Carolina, near the line, as was the residence of the testator in South Carolina, he went to her house, where he remained a few weeks and became discontented, but while there, proposed to young Mr. Worley, her son, to bring his slaves to Mrs. Worley's, work them upon the farm, and make some division between them of the profits; but young Worley declined the arrangement, saying, that his negroes were unmanageable, and he did not wish to have any thing to do with them. He was then removed to Nancy Horne's in South Carolina, she being the widow of his brother, Thomas Horne, who had several children, and while there was kindly treated, for which he expressed himself grateful, as well as for that at Mrs. Worley's, and to one or two witnesses expressed his intention of rewarding them in his will, although at the time of making his will three or four weeks afterwards, he expressed himself dissatisfied with them, and determined to give them nothing. Within a few days after his coming to Mrs. Nancy Horne's, he was removed, together with his slaves, by the plaintiff, J. E. Horne, to the plaintiff, Wm. Horne's, in Anson County, North Carolina, early in December. Before leaving South Carolina the last time, he observed to a witness, that his place was too poor for him to live on: that he had rented Wm. Horne's old place in Anson County N. C., where he was going to make a crop, and Joel E. Horne was going to superintend his hands; to another witness he said, he was going to stay awhile, but would return again; to the subscribing witnesses to the will, he said, he was about to rent, or had rented, Wm. Horne's old place, and Joel E. Horne was to superintend his affairs. The witness was not clear whether he said he had rented or was about to rent. On the 14th of December the will was executed, and after that day, no witness deposed to having seen him, though it is believed he died about Christmas following the making of the will, but whether at William Horne's residence, or at the place spoken of, as having been rented by him, did not appear, nor did it appear whether he or any of his slaves had ever been on the William Horne old place. His will was proven in common form at January term, 1841, being the next term of that Court after his death, which occurred on the second Monday of January. There were but two subscribing witnesses to the will, and it was proved that by the law of South Carolina, three were necessary to a will, either of realty or personalty.

His Honor charged the jury, that, if they believed the evidence touching the paper writing, it was duly proved according to the laws of North Carolina, and they should find it to be the last will and testament of the testator, Joel Horne, deceased, unless one of the three objections, raised by the defendants, existed in fact, the first of which was that the supposed testator, Joel Horne, was not of sound and disposing mind and memory.

Upon this point, the Court informed the jury, that it was in evidence that Joel Horne was always a man of weak intellect, and especially during his last illness: That weakness of mind was not itself a valid objection, as the law did not undertake to weigh the size of men's intellects: that it did not require that he should be a wise man: that, if he was between the wise and foolish sort, although he inclined rather to the foolish, he was, in law, capable of making a last will and testament: that to enable a man to make a disposition of his property by last will and testament, he must do it with understanding...