In re Bradford's Will

• Decision Date: 22 February 1922
• Docket Number: 16.
• Citation: 110 S.E. 586,183 N.C. 4
• Parties: IN RE BRADFORD'S WILL.
• Court: North Carolina Supreme Court

110 S.E. 586

183 N.C. 4

IN RE BRADFORD'S WILL.

No. 16.

Supreme Court of North Carolina

February 22, 1922

Appeal from Superior Court, Pasquotank County; Horton, Judge.

In the matter of the estate of D. B. Bradford, deceased. From a judgment holding will valid, caveators appeal. No error.

D. B Bradford died in Elizabeth City, November, 1918. His wife aged 79, predeceased him in December, 1916, leaving no children. After his wife's death he lived with his nephew, J. B. Griggs, but after a few months he married Minerva I. Cross, a trained nurse, aged 23. At his death, he left surviving him his widow, the propounder Minerva I Bradford; Dr. J. B. Griggs, J. B. Fearing, and Mary Whitehurst, children of two deceased sisters, and D. B Fearing, Keith and Woodson Fearing, grandchildren of one of his deceased sisters, as his heirs at law. A year after his second marriage, he executed this will, the principal bequests in which are that he bequeathed a fund to erect a handsome monument to the memory of his first wife and $6,000 to the Episcopal Church towards building a parish house to the memory of said first wife and her mother, and gave to his nephews and nieces (together with previous property) $25,000. He also bequeathed $500 to the Masonic order, and the rest of his estate he bequeathed to his widow (naming the items), excepting certain valuable real estate devised to his heirs at law and to the heirs of his first wife.

The only issue raised and submitted to the jury upon the evidence, is the following:

"Was the execution of the paper writing purporting to be the last will and testament of D. B. Bradford as to the devises and bequests therein to Minerva I. Bradford procured by the fraud and undue influence of said Minerva I. Bradford, as alleged"

--to which the jury responded, "No." Judgment accordingly. Appeal by caveators.

In a contest of a will on ground of exercise of undue influence by widow, it was competent for widow to testify that the first time she saw the will was after the death of her husband, as against an objection that it was a transaction with a deceased person, being an independent fact.

In contest of will on ground of exercise of undue influence by widow, her testimony that, "excluding any relationship with Mr. B. [deceased], she had nothing to do with preparing the will," was simply a declaration that she did not do this through third parties, and was competent as an independent fact, even though it may have indirectly tended to prove a transaction with the deceased.

Aydlett & Simpson and Meekins & McMullan, all of Elizabeth City, for appellants.

Thompson & Wilson, of Elizabeth City, S. C. Bragaw, of Washington, N. C., and Ehringhaus & Small, of Elizabeth City, for appellee.

CLARK C.J.

There is no allegation of any undue influence as to any of the other devises and bequests in said will, nor as to the mental capacity of the testator; the sole question raised by the caveators, his heirs at law, being as to the undue influence alleged to have been exerted by his wife.

Our statute (C. S. § 4134) revokes any will made prior to the marriage, and the testimony of the existence of such previous will cannot be therefore considered as evidence of undue influence. Means v. Ury, 141 N.C. 248, 53 S.E. 850. Indeed on a review of the evidence in this controversy the judge might almost have been justified in directing the jury to find that there was no evidence of undue influence by the propounder. In this record there is no evidence that even a single time she ever mentioned the making of the will to him. The will was executed one year after his marriage to his second wife, and on the anniversary of their wedding, without any evidence of a knowledge thereof by her at the time of it being made. He died in November following.

The exceptions may be briefly considered: The first exception was to the court's refusal to admit the caveators to show that shortly...