In re Efird's Will

• Decision Date: 31 January 1928
• Docket Number: 435.
• Parties: In re EFIRD'S WILL. v. SMITH et al. EFIRD
• Court: North Carolina Supreme Court

141 S.E. 460

195 N.C. 76

In re EFIRD'S WILL.

EFIRD v. SMITH et al.

No. 435.

Supreme Court of North Carolina

January 31, 1928

Appeal from Superior Court, Stanly County; Bowie, Special Judge.

Caveat of the will of John S. Efird by W. T. Efird, opposed by R. L Smith and others, propounders. From a judgment denying caveat, caveator appeals. No error.

Evidence of undue influence held insufficient for jury.

The issue submitted to the jury and the answer thereto was as follows:

"Is the paper writing propounded for probate dated August 20 1926, and every part thereof, the last will and testament of John S. Efird? Answer: Yes."

The necessary facts and assignments of error will be set forth in the opinion.

James A. Lockhart, of Charlotte, for appellant.

T. L Caudle, of Wadesboro, Brown & Sikes, and W. E. Smith, all of Albemarle, and Cansler & Cansler, of Charlotte, for propounders.

T. C. Guthrie, of Charlotte, for Morrow.

CLARKSON J.

John S. Efird died on January 19, 1927, leaving surviving him his widow, Bertie E. Efird, and three sons, J. J. Efird, W. G. Efird, and W. T. Efird. W. T. Efird filed a caveat to a paper writing dated August 20, 1926, probated in common form-proceeding in rem-before the clerk of the superior court of Stanly county, as the last will and testament of John S. Efird. In re Little's Will, 187 N.C. 177, 121 S.E. 453. In the paper writing, R. L. Smith, W. G. Efird, and J. J. Efird are named as executors, and R. L. Smith, Charles A. Cannon, and the Wachovia Bank & Trust Company, of Winston-Salem, N. C., trustees, and Mrs. Bertie E. Efird, W. T. Efird, J. J. Efird, and W. G. Efird, Mrs. Estelle E. Morrow, and the children of W. T. Efird, and the children of W. G. Efird and the children of J. J. Efird, and the children of Mrs. Estelle E. Morrow, are named as devisees, legatees, and beneficiaries under said paper writing. The proceeding was duly transferred by the clerk to the civil issue docket for the trial of the issue of devisavit vel non. On the trial the propounders introduced in evidence the paper writing purporting to be the last will and testament of John S. Efird, with the name of the three witnesses signed to the paper writing (only two required under law of this state [C. S. § 4131]). The witnesses testified that the paper writing was signed, sealed, published, and declared by John S. Efird to be his last will and testament in their presence, who, at his request and in his presence and in the presence of each other subscribed their names as witnesses thereto. They further testified, in substance, that at the time John S. Efird signed the will he had sufficient mind to know the nature, character, and value of his property, who his relatives were and those benefiting by his bounty, and the disposition he was making of his property by this will. The propounders rested.

On the part of the caveator, some 18 witnesses were examined. The caveator contends:

"That the evidence was to the effect that John S. Efird was an old man, in feeble health.

That in their opinion he did not have the mental capacity to understand the nature and extent of his property, the natural objects of his bounty, and the disposition he was making of it by will. Others testified that in their opinion, he could understand who his relatives were and their claims upon him, but not the extent of his property and disposition he was making of it; others, that he understood with reference to his relatives and property, but could not understand the disposition he was making of this property. That Mr. Efird, who owned a large estate, was worried about the disposition of his estate."

The Paper Writing Propounded as a Will.-It made certain provisions for his wife; the household and kitchen furniture, etc., for her sole use so long as she lives, the residence, house, and lot for her life and at her death to the trustees to be held by them as all other property. The will states that it is in lieu of dower and distributive share, as she had considerable estate both real and personal, and had expressed herself as not desiring to take dower and distributive share in the estate. It also provided for her an ample support and maintenance out of the estate according to and suitable to her needs and condition in life, "to provide liberally," and details the manner.

In item 6, the division is set forth as follows:

"It is my will and desire, and I do so direct, that the net income from my estate be divided into five equal parts, and said shall be paid out semiannually by my trustees until the dissolution of this trust as follows, and the following proportions: One-fifth (1/5) to the children or bodily heirs of my son, W. T. Efird (the caveator in this proceeding) to each share and share alike; provided, however, that said fifth shall be held and invested by my said trustees for the benefit of his said children, and so much thereof used as may be necessary from time to time for their support, maintenance and education; and also, if necessary, certain portions of said one-fifth of my income may be used for the support and maintenance of their parents, as their needs may actually require; and the remainder of said income not so used to be paid out to each of said children respectively, share and share alike, as they become 25 years of age. One-fifth (1/5) to my son, W. G. Efird; provided, however, that he is sober, industrious and law-abiding, but if in the opinion of my trustees, he is not such, then said fifth to be invested by them for the benefit of his children, and so much of it used as may be necessary for their support, maintenance and education; and the remainder of said income not so used to be paid over to each of said children, share and share alike, as they become 25 years of age. One-fifth (1/5) to my son J. J. Efird; provided, however, that he is sober, industrious and law-abiding, and if in the opinion of my trustees he is not such, then said fifth to be invested by them for the benefit of his children, and so much of it used as may be necessary for their support, maintenance and education; and the remainder of said income not so used to be paid over to each of said children, share and share alike, as they become 25 years of age. One-fifth (1/5) to my adopted daughter, Estelle Efird Morrow, provided, however, that she is economical and shows a disposition to take care of and properly use said income, but if in the opinion of my trustees she is not such, then said fifth to be invested by them for the benefit of the said Estelle Efird Morrow and her children, and so much of it used as may be necessary for her and their support, maintenance and education; and the remainder of said income not so used to be paid over to each of said children, share and share alike, as they become 25 years of age. One-fifth the charity and benevolences (the specific objects to be hereinafter designated by a codicil to be attached hereto)."

Provision is made in case of the death of any child, etc. (Estelle E. Morrow being considered a legal child), before the dissolution of the trust.

"Item 7. On December 1, 1941, if my wife, Bertie E. Efird, be then dead, said trust shall be dissolved, except as hereinafter provided, but if she be then living said trust shall not be dissolved until her death, but it shall not be dissolved until the happening of both events. On the happening of both events, said trust shall be dissolved and my trustees shall divide my estate into five equal parts to be paid out and disposed of by them as follows, to wit:

One-fifth (1/5) to the children or bodily heirs of my son, W. T. Efird (the caveator in this proceeding), who are living at that time, to be divided among them share and share alike. If any of said children shall die before said date and leave bodily issue, then said children of the deceased child shall represent their ancestor and take his or her share; provided, however, that said trustees shall hold and invest said estate for the benefit of said children and pay it to each one as he or she respectively becomes 25 years of age.

One-fifth (1/5) to my son, W. G. Efird, provided, however, that he is sober, industrious and law-abiding, but if in the opinion of my trustees he is not such, then said fifth shall be paid to his children, share and share alike; provided, however, said trustees shall hold said fund and keep same invested, and use so much of same as is necessary for their support, maintenance and education until each of said children shall respectively reach the age of 25 years.

One-fifth (1/5) to my son, J. J. Efird; provided, however, that he is sober, industrious and law-abiding, but if in the opinion of my trustees he is not such, then said fifth shall be paid to his children, share and share alike; provided, however, said trustees shall hold said fund and keep same invested and use so much of same as is necessary for their support, maintenance and education until each of said children shall respectively reach the age of 25 years.

One-fifth (1/5) to my adopted daughter, Estelle Efird Morrow; provided, however, if she should die before the dissolution of this trust, then the same to be paid to her living children, share and share alike, when each of them shall respectively reach the age of 25 years.

One-fifth (1/5) to charity and benevolences (the specific objects to be hereafter designated by a codicil to be attached hereto)."

Provision is made that certain deeds that have been made for houses and lots, where Estelle E. Morrow, J. J. Efird and W. G.

Efird live, shall be kept by the trustees and delivered to them at the dissolution of the trust. They to be charged in the final distribution of the estate _____ sum without interest; the trustees to pay W. T. Efird (caveator in...