In re Brown's Will

• Decision Date: 23 November 1927
• Docket Number: 14.
• Citation: 140 S.E. 192,194 N.C. 583
• Parties: In re BROWN'S WILL.
• Court: North Carolina Supreme Court

140 S.E. 192

194 N.C. 583

In re BROWN'S WILL.

No. 14.

Supreme Court of North Carolina

November 23, 1927

Appeal from Superior Court, Beaufort County; Daniels, Judge.

In the matter of the will of George H. Brown.

Proceeding by Mrs. Laura E. Brown for probate of paper writing propounded for probate as the last will and testament of George H. Brown, deceased, opposed by A. D. McLean, and others. Judgment for caveators, and the propounder appeals. No error.

Brogden and Clarkson, JJ., dissenting.

Proceeding for probate of paper writing, propounded as the last will and testament of George H. Brown, deceased.

The issue submitted to and answered by the jury was as follows:

"Is the paper writing, dated January 5, 1926, propounded for probate, and every part thereof, the last will and testament of George H. Brown?" Answer: "No."

From judgment on the verdict, propounder appealed to the Supreme Court.

P. W McMullan and J. C. B. Ehringhaus, both of Elizabeth City Harry McMullan, of Washington, N. C., and Manning & Manning, of Raleigh, for appellant.

Ward & Grimes, H. C. Carter, John H. Bonner, and Stephen C. Bragaw, all of Washington, N. C., for appellees.

CONNOR J.

George H. Brown died at his home in the town of Washington, Beaufort county, N. C., on March 16, 1926. He was born in said town, on May 3, 1850. He was therefore in his seventy-seventh year at the date of his death.

From 1872, when he was duly licensed to practice as an attorney and counselor at law in this state, until 1889, when he was appointed judge of the superior court for the First judicial district, he was actively and continuously engaged in the practice of his profession. From 1889 to 1905 he served continuously as a judge of the superior court. On January 1, 1905, having been elected to that office at the preceding general election, he began his service as an Associate Justice of the Supreme Court. This service continued for two terms, and ended in 1920, at the expiration of his second term. He did not seek nomination or election for another term. Being then in his seventieth year, he retired from active and continuous work in his profession or otherwise. In 1921, he qualified as a special or emergency judge of the superior court, in accordance with the provisions of chapter 125, Public Laws 1921, and thereafter, from time to time, he presided at terms of the superior court in various counties of the state, under assignments by the Governor. The last term to which he was assigned, and at which he presided, was the November term, 1925, of the superior court of Beaufort, his native county. During all these years he resided at and made his home in the town of Washington.

An estimate of Judge Brown as a man and as a citizen and an appreciation of his services to the state, both as a judge of the superior court for 15 years and as an Associate Justice of the Supreme Court for 16 years, may be found in the address delivered by Hon. Robert W. Winston, upon the presentation of his portrait to this court, on April 12, 1927. See 193 N.C. 859. This portrait was presented to the court by Mrs. Brown. It hangs in its appropriate place upon the walls of the chamber in which this court now sits. In the words of the Chief Justice, in his remarks accepting this portrait, Judge Brown, has "left for our keeping a record of high service to his state, and a heritage of great worth to his fellow men."

At his death, Judge Brown left surviving, as his widow, Mrs. Laura E. Brown, to whom he was married at Washington, N. C., on December 17, 1874. They lived together in the intimate relationship of husband and wife for more than 50 years. She is the propounder of the paper writing offered for probate as his last will and testament, which is dated January 5, 1926. No children were born of their marriage. His heirs at law are his two surviving sisters, and his nephews and nieces, the children of his two deceased sisters. He was the only brother of these sisters. These heirs at law are the caveators in this proceeding.

The issue which is determinative of this proceeding was submitted to and answered by a jury of Beaufort county, upon evidence consisting chiefly of testimony of relatives and friends who had known Judge Brown for many years, both while he was strong and vigorous and after sickness and the infirmities of age had rendered him weak and feeble. There was sharp conflict in the opinions testified to by the witnesses at the trial as to the fact involved in the issue, to wit, Judge Brown's mental capacity on January 5, 1926. Many were of the opinion that Judge Brown was not of sound mind and memory on said date; many were of opinion to the contrary. The credibility and probative force of all the evidence, including the conflicting opinion of the witnesses as to his mental capacity on January 5, 1926, were matters essentially for the jury. By their verdict, they have found that the paper writing, dated January 5, 1926, propounded for probate, is not the last will and testament of George H. Brown. From the judgment upon the verdict, the propounder has appealed to this court, assigning as errors of law in the trial of the issue (1) the admission of testimony as evidence, over her objections; (2) the instructions of the court to the jury to which she duly excepted; (3) the rulings of the court as to the conduct of the trial to which she excepted; and (4) the refusal of her motion that the verdict be set aside and a new trial ordered. These assignments of error are duly presented to this court by propounder's appeal from the judgment. The jurisdiction of this court conferred by section 8 of article 4 of the Constitution of North Carolina is confined to a consideration of assignments of error in matters of law and legal inference, in order that it may be determined whether or not they shall be sustained. In re Will of Creecy, 190 N.C. 301, 129 S.E. 822.

The evidence tends to show the formal execution of the paper writing dated January 5, 1926, by Judge Brown, as his last will and testament. The paper writing is in form sufficient to constitute a will, bequeathing and devising all his property, real and personal, to his wife, Mrs. Laura E. Brown, "to be hers absolutely in fee simple, including my residence and law office on Market street, in Washington, No. Car." Mrs. Brown is appointed executrix to the will. She is the sole devisee and legatee, by the terms of the will, of all the estate of Judge Brown, both real and personal. No reference is made in this paper writing to his sisters or to his nephews or nieces.

The uncontradicted testimony of witnesses tends to show that all the requirements of the statute (C. S. § 4131) with respect to the execution of said paper writing, both as a holograph and as an attested will, were complied with. Three witnesses, whose credibility or competency is not questioned, testified that the paper writing and every part thereof is in the handwriting of Judge Brown, whose name is subscribed thereto; there was evidence that the paper writing was found, after the death of Judge Brown, among his valuable papers and effects in his safety deposit box in the vault of the Bank of Washington, where it was deposited by Judge Brown on January 5, 1926. There was evidence also that said paper writing was written by Judge Brown in his lifetime and signed by him, and that same was subscribed by two witnesses in his presence, and at his request, no one of whom is interested in the devise or bequest of any property by the said paper writing.

The court charged the jury that the evidence, if believed by them, established the formal execution of the paper writing by Judge Brown, as his last will and testament, and that said paper writing, if so executed by him, is his valid will, unless they should find from the evidence, the burden being on the caveators in that respect, that at the time of its execution Judge Brown did not have the mental capacity which the law requires for the execution of a will. There was no contention and no evidence tending to show that the execution of the paper writing as a will was procured by undue influence. The sole contention of the caveators, with respect to the validity of the paper writing as a will, is that Judge Brown, at the time of its execution by him, on January 5, 1926, and continuously thereafter until his death on March 16, 1926, did not have the capacity to make and execute a will, for that he was not of sound mind and disposing memory at and during said time.

In support of their contention, caveators offered evidence tending to show that prior to 1919, when he was serving his second term as an Associate Justice of the Supreme Court, Judge Brown was strong and vigorous, in body and in mind; that in the spring of 1919, Judge Brown became ill, and that in consequence of such illness, he spent some time as a patient in hospitals and sanatoriums; that during this illness, he was greatly depressed in spirit and suffered from extreme melancholia, often expressing fear that he would find himself entirely without means for the support of himself and wife, and that he would become a pauper; that he was greatly concerned about his health, frequently expressing apprehension that he would not be able to return to his work on the Supreme Court, with the result that he would be deprived of his salary as an Associate Justice, making it difficult for him to live; that during this illness his mind was unsound and his memory bad. There is evidence that at this time Judge Brown was possessed of a large estate, yielding an income greatly in excess of his salary.

The evidence further tends to show that Judge Brown recovered from this illness, both physically and mentally, and returned to his work on the Supreme Court; he resumed...