In Re Coffield's Will., 94.

• Citation: 4 S.E.2d 870,216 n.c. 285
• Decision Date: 11 October 1939
• Docket Number: No. 94.,94.
• Court: North Carolina Supreme Court
• Parties: In re COFFIELD'S WILL.

4 S.E.2d 870

216 n.c. 285

In re COFFIELD'S WILL.

No. 94.

Supreme Court of North Carolina.

Oct 11, 1939.

Appeal from Superior Court, Martin County; Henry A. Grady, Emergency Judge.

Proceeding in the matter of the will of Gus Coffield, to the probate of which caveat was filed. From a judgment rendered on a verdict sustaining the will, the caveators appeal.

No error.

This is a controversy over a Caveat to the Will of Gus Coffield. On the 17th day of May, 1938, Gus Coffield executed a will. On the 18th day of May, 1938, he married Fannie Coffield. On the 20th day of February, 1939, Gus Coffield executed a codicil to his prior will ratifying and confirming his will dated the 17th day of May, 1938, except as changed in the codicil. In the codicil Gus Coffield devised certain realty to his wife, Fannie Coffield. At the trial of the action it was not contended that the first will was not properly executed. However, it was contended by the caveators that the codicil was not a proper republication of the first will, that Gus Coffield was not mentally competent to execute a will at the time of the execution of the codicil, and that the execution of said codicil was procured by fraud and undue influence.

The issues submitted to the jury and their answers thereto, were as follows:

"1. Was the paper writing propounded for probate executed by Gus Coffield in the manner and under the formality required by statute? Ans: Yes.

"2. At the time of the execution of said paper writing on February 20, 1939, did Gus Coffield have sufficient mentalcapacity to make a valid and binding will? Ans: Yes.

"3. Was the execution of said paper writing procured through undue influence, as alleged in the caveat? Ans: No.

"4. Is said paper writing, and each and every part thereof, the last will and testament of Gus Coffield, deceased? Ans: Yes."

The Court below rendered judgment on the verdict sustaining the will. The Court further rendered the following judgment: "In the above entitled action, it appearing to the Court that Elbert S. Peel, Hugh G. Horton and J. C. Smith, attorneys for Paul D. Roberson, represented the propounders of the last will and testament of Gus Coffield and performed valuable services in that connection, and acted as counsel for said estate in other matters pertaining thereto: Now, therefore, it is Ordered and Adjudged that said Elbert S. Peel, Hugh G. Horton and J. C. Smith be allowed the sum of $750.00 as fees in said capacity up until the signing of this judgment, same to be paid by Paul D. Roberson, Executor of the Last Will and Testament of Gus Coffield. Henry A. Grady, Judge Presiding."

The caveators made numerous exceptions and assignments of error and appealed to the Supreme Court. The material assignments of error and necessary facts will be set forth in the opinion.

Peel & Manning, of Williamston, J. C. Smith, of Robersonville, and Hugh G. Horton, of Williamston, for propounders.

P. H. Bell, of Plymouth, and Coburn & Coburn, of Williamston, for caveators.

CLARKSON, Justice.

On May 17, 1938, Gus Coffield executed his will. On May 18, he was married to Fannie Coffield, who survives him. A will is revoked by marriage. N. C. Code 1935 (Michie), § 4134.

On February 20, 1939, he executed a paper-writing. In it is the following: "I, Gus Coffield, of said County and State, make this codicil to my last will and testament published by me, and dated the 17th day of May, 1938, which I ratify and confirm, except as the same shall be changed hereby. Whereas, I have changed my mind as to Item #5 thereof, I hereby make the following devises and bequeaths, " etc.

It is contended by the caveators that the paper-writing was not a will and the will of May 17, 1938, was revoked by statute and there was no valid re-execution and therefore the paper-writing purporting to be a will was null and void. We cannot so hold under the authorities in this State, which we think are borne out by reason and logic.

In Murray v. Oliver, 41 N.C. 55, 56, 57, it is written: "Whatever doubt was once entertained, it is now unquestionably settled, that adding a codicil is a republication, and the codicil brings the will to it, and makes it a will from the date of the codicil."

In Sawyer's Legatees v. Sawyer's Heirs, 52 N.C. 134, 139, 140, it is said: "So, our conclusion is, that a holograph will revoked by the marriage of the testator, can only...