In re Evans' Will

• Decision Date: 18 October 1898
• Citation: 31 S.E. 267,123 N.C. 113
• Parties: In re EVANS' WILL.
• Court: North Carolina Supreme Court

31 S.E. 267

123 N.C. 113

In re EVANS' WILL.

Supreme Court of North Carolina

October 18, 1898

Appeal from superior court, Nash county; Bryan, Judge.

Proceeding to prove the will of Nancy Evans, deceased. From a judgment for the propounders, the caveators appeal. Affirmed.

The son of testatrix testified that she had given him the will to have rewritten and destroyed, and when he returned it to her she asked him why he had not destroyed it as she had directed, and when he told her it was hers, to do what she pleased with it, she took it and went into the house, saying that the stove was not gone anywhere.

Testatrix was cared for by her daughter. Her son was dissipated. A few years before her death she expressed to some friends a desire to change her will, made eight or ten years before, in which she had favored the daughter, and left the son's share in trust for his children; and when the son, to whom she had given it to have it rewritten and destroyed, returned it, she asked him why he had not done as she told him. He replied that it was hers, and she took it, saying, in effect, that she could destroy it herself. She asked a witness to write a will for her, and said she would have to run away from the daughter; that the daughter would not let her go. She said she had a will made, but that it was not hers, it was the daughter's will. Held not sufficient to go to the jury on the issue of undue influence on the daughter's part.

Jacob Battle and Cooke & Cooley, for appellants.

F. S Spruill, H. G. Connor, and B. H. Bunn, for appellee.

FAIRCLOTH C.J.

This was a proceeding to set up and prove the last will of Nancy Evans; the propounders alleging that the will was made in 1882, and was in existence at her death, in 1895, and was destroyed by her son, Ira, after her death. The caveators contend that the execution of the will was procured by the undue influence of her daughter, Mary Friar, one of the beneficiaries; that the will gave one half of the estate to said Mary, and the other half to a trustee for the children of said Ira; and that the testatrix, before her death desired to change her will. All the evidence was admitted without objection, and there are several exceptions to the ruling and charge of his honor. They are all untenable, and the only one that we had seriously to consider was the tenth in relation to the averment of undue influence at the execution of the will. Mary cared for her mother, and Ira was dissipated; they being...