In Re Cooper's Will.
| Decision Date | 19 December 1928 |
| Docket Number | (No. 467.) |
| Citation | 145 S.E. 782 |
| Court | North Carolina Supreme Court |
| Parties | In re COOPER'S WILL. |
Appeal from Superior Court, Mecklenberg County; W. F. Harding, Judge.
Proceeding for probate, in solemn form, of a paper writing propounded by Charlie Williams, sole legatee and devisee named therein, as the last will and testament of Mary Cooper, deceased. No error.
A caveat was filed to the probate of said paper writing by E. P. Stowe, sole legatee and devisee named in a paper writing, which was probated, in common form, as the last will and testament of said Mary Cooper, prior to the filing of said paper writing for probate by Charlie Williams. No caveat has been filed to the probate of the will of Mary Cooper, under which E. P. Stowe, the caveator in this proceeding, claims as her sole legatee and devisee.
Issues involving the grounds upon which the caveat was filed were submitted to the jury. The verdict was as follows:
1. Is the signature of Mary Cooper to the paper writing offered by propounder as the last will and testament of Mary Cooper a forgery? Answer: Yes.
2. Was the execution of said paper writing procured by the exercise of undue influence over the said Mary Cooper? Answer: ——.
3. Did Mary Cooper, at the time of the execution of said paper writing by her, have sufficient mental capacity to make a will? Answer: ———.
4. Is the said paper writing the last will and testament of Mary Cooper? Answer: ——.
The jury, having answered the first issue, "Yes, " under instructions of the court did not answer the other issues, but returned said answer as the verdict.
From judgment on the verdict, propounder appealed to the Supreme Court.
J. D. McCall and C. H. Edwards, both of Charlotte, for appellant.
Thaddeus A. Adams, of Charlotte, for appellee.
CONNOR, J. Mary Cooper, an elderly colored woman, between 65 and 70 years of age, died at her home, in Charlotte, N. C, on October 9, 1927. She had been sick about two weeks before her death. There was evidence that "she had been ailing pretty much all the year." She left surviving her no next of kin and no heirs at law. At the date of her death, she owned property, real and persona], of the value of several thousand dollars.
On October 26, 1927, a paper writing, dated December 9, 1914, was probated, in common form, by the clerk of the superior court of Mecklenberg county, as the last will and testament of the said Mary Cooper. This paper writing was written by an attorney at law, a member of the Bar of Charlotte, N. C. Its execution was attested by three witnesses, the draughtsman, another attorney at law, and a stenographer, who was employed in the office of the draughtsman. E. P. Stowe is named as the sole legatee and devisee in said will of all the property of whatsoever kind and wherever situated, both real and personal, of the said Mary Cooper; he is also appointed therein as the executor of said will. There was evidence tending to show that both prior and subsequent to the date of said paper writing, to wit, December 9, 1914, the relations between the said E. P. Stowe and Mary Cooper were friendly and intimate; he looked after her. Immediately after her death, the said E. P. Stowe took the said paper writing from the "little treasure box" in which Mary Cooper had kept the same. Within a few days thereafter, the said paper writing was propounded by E. P. Stowe, and was probated and recorded by the clerk of the superior court of Mecklenberg county as the last will and testament of Mary Cooper.
The probate and record of said paper writing is conclusive evidence that the same is the last will and testament of Mary Cooper. No caveat has been filed thereto. It has not been vacated on appeal or declared void by any competent tribunal. C. S. § 4145; Holt v. Ziglar, 163 N. C. 390, 79 S. E. 805. The probate of said will, in common form, cannot be attacked, collaterally. Varner v. Johnston, 112 N. C. 570, 17 S. E. 483. The title of E. P. Stowe to all the property, real and personal, devised and bequeathed to him by the said will, is good as against all persons, claiming under Mary Cooper, since her death, so long as said will stands.
On October 31, 1927, another paper writing, dated October 4, 1927, was probated, in common form, by the assistant clerk of the superior court of Mecklenberg county, as the last will and testament of Mary Cooper. This paper writing was written by Walter J. Harris, a colored man; its execution by Mary Cooper is attested by the said Walter J. Harris and Emma Harris, his wife. Charlie Williams is named therein as the sole legatee and devisee of all the property owned by Mary Cooper; no executor is named in said will, but the said Charlie Williams is directed to pay all the debts of said Mary Cooper. There was evidence tending to show that Charlie Williams had lived in the home of Mary Cooper for about a year before her death, and that during said time he had "waited" on her when she was sick. Charlie Williams found said paper writing in the woodshed on the premises of Mary Cooper after her death. It was among the bedclothes of deceased, which had been taken from her house to the woodshed. The said paper writing was offered for probate as the last will and testament of Mary Cooper, by Charlie Williams, on October 31, 1927. After its probate in common form, by the assistant clerk of the superior court of Mecklenberg county, as such last will and testament, to wit, on November 2, 1927, a caveat to such probate was filed by E. P. Stowe, the executor and sole legatee and devisee in the paper writing probated on October 26, 1927, as the last will and testament of Mary Cooper. In said caveat it is alleged: (1) That the signature of Mary Cooper in the paper writing dated October 4, 1927, is a forgery; (2) that if said signature is not a forgery, it was procured by fraud and undue influence upon the said Mary Cooper; and (3) that if said signature is not a forgery, the said Mary Cooper did not have sufficient mental capacity to make a will at the date of said paper writing.
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Holt v. Holt
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