In Re Chisman's Will.

• Decision Date: 24 April 1918
• Docket Number: (No. 380.)
• Citation: 95 S.E. 769
• Court: North Carolina Supreme Court
• Parties: In re CHISMAN'S WILL.

95 S.E. 769

In re CHISMAN'S WILL.

(No. 380.)

Supreme Court of North Carolina.

April 24, 1918.

Appeal from Superior Court, Stokes County; Harding, Judge.

In the matter of the estate of Augusta Chisman, deceased.Caveat after will was admitted to probate in common form by Wm. Wade Chisman and others.From judgment admitting will to probate, caveators appeal.New trial.

This is an appeal from an issue of devisavit vel non, viz.:

"Is the paper writing propounded for probate and every part thereof the last will and testament of Mrs. Augusta Chisman?Answer: Yes."

From the judgment rendered, caveators appealed.

N. O. Petree, of Danbury, C. O. McMichael, of Reidsville, and E. B. Jones, of Winston-Salem, for appellants.

Louis M. Swink and J. E. Alexander, both of Winston-Salem, for appellees.

BROWN, J.After the two witnesses to the will, Franklin and Young, had been examin ed, the propounders offered their affidavits taken before the clerk when the will was probated in common form.These were admitted as corroborative evidence.

The probate of a will in common form is an ex parte proceeding, and no one interested is before the clerk except the propounders and witnesses.When an issue of devisavit vel non is raised by caveat, it is tried in the superior court in term by a jury.Upon such trial the propounder carries the burden of proof to establish the formal execution of the will.This he must do by proving the will per testes in solemn form.He must call the subscribing witnesses, or, by accounting for their absence, resort to the next best competent evidence obtainable.In re Hodgepeth, 150 N. C. 245, 63 S. E. 1025.The proceedings in common form before the clerk are ex parte and not binding on the caveators, who were not parties.The affidavits of the witnesses are not substantive evidence, except in certain cases provided by the statute.

After the witnesses for the will have been sworn and examined, their affidavits are competent evidence only to corroborate them, and the affidavits of Franklin and Young were so offered.The objection that the affidavits did not tend to corroborate the witnesses should have been sustained.

It was the mental capacity of the testatrix, as well as undue influence, that was in issue.Upon their examination as witnesses when subject to cross-examination both witnesses testified that they did not know what her mental condition was and could not testify to it.In their affidavits taken by the clerk in the usual formula the witnesses deposed that "Mrs. Augusta Chisman was of sound mind and memory."The affidavits did not corroborate the witnesses, and, not being corroborative, they should have been excluded.As presented to the jury, they had the force and effect of substantive evidence as to her mental condition.Evidence competent solely as corroborative must tend to corroborate; otherwise it should be excluded.

Upon the trial Mrs. Martha Hanes, the principal beneficiary under the will, was offered as a witness by the propounders.She was asked this question:

"What do you know about the preparation of this will, if anything?(Objection by caveators.Overruled.Exception by caveators.)A.She told me she had made her will willing me...