In Re Fowler's Will.

• Decision Date: 20 March 1912
• Citation: 159 N.C. 203,74 S.E. 117
• Court: North Carolina Supreme Court
• Parties: In re FOWLER'S WILL.

74 S.E. 117

(159 N.C. 203)

In re FOWLER'S WILL.

Supreme Court of North Carolina.

March 20, 1912.

1. Witnesses (§ 171*)—Communications with Decedent — Disqualification — Interest.

A witness in a probate proceeding was not disqualified, under Revisal 1905, § 1631 (Code, | 590), providing that a party interested in the event shall not be examined as a witness in his own behalf, or in behalf of the party succeeding to his title, against the administrator of a decedent as to communications between witness and decedent, where witness, who testified as to communications showing undue influence, was a devisee under the will sought to be probated, and would receive less as an heir, if the will were set aside, than under the will, since she testified against her own interest.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 707, 710; Dec. Dig. § 171.*]

2. Wills (§ 165*)—Undue Influence—Declarations of Testator.

Evidence of declarations by decedent after * the execution of his will was admissible to show that it was obtained by undue influence.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 415-420; Dec. Dig. § 165.*]

3. Wills (§ 324*)—Probate Proceedings-Jury Question—Undue Influence.

Evidence in a proceeding to probate a will held to make it a jury question whether the will was executed through undue influence.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 225, 767-770; Dec. Dig. § 324.*]

4. Wills (§ 286*)—Probate—Special Issues —Undue Influence.

The questions of undue influence or fraud in executing a will may be tried under the usual issue as to whether the paper offered was decedent's last will and testament, and it is not necessary to submit such questions by a special issue.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 647-650; Dec. Dig. § 286.*]

Appeal from Superior Court, Harnett County; Peebles, Judge.

In the matter of the probate of the will of J. M. Fowler. From a judgment establishing the will, caveators appeal. Reversed, and new trial ordered.

This is a caveat filed to the will of J. M. Fowler, and was before us in a former appeal. 156 N. C. 340, 72 S. E. 357. The real question in the case is whether the execution of the will was procured by fraud or undue influence. The court submitted two issues which, with the answers thereto, are as follows:

"(1) Is the paper writing here offered, and every part thereof, the last will and testament of James M. Fowler, deceased? Answer: Yes.

"(2) If the paper writing was the last will and testament of J. M. Fowler, was it obtained by undue influence or fraud? Answer: No."

Upon the verdict for the propounders, the court entered a judgment establishing the will. The caveators excepted and appealed, and assign the following errors: (1) That his honor erred in submitting the sec-ond issue of record, as appears in caveators' first exception. (2) That his honor erred in excluding from the evidence the testimony of Rena Jackson, as offered by the caveators, as set forth in caveators' second exception. (3) That his honor erred in charging the jury that there was no evidence of undue influence or fraud, and in his charge on the second issue, as set forth in caveators' third exception. The other assignments were merely formal.

Upon the question whether there was any evidence of undue influence, we make these extracts from the testimony:

Will Smith, a witness for caveators, testified: "I saw testator several times before he died the last of February, 1010. He told me that he had something to tell me, and said that he had made his will and willed to all his children an equal share, and to his grandchildren one-half share. He told me that he was perfectly satisfied with his will. Later I saw him again, and he told me that he had made his will and was perfectly satisfied, as he had made it as his heart desired, but that he was being aggravated mighty bad over it; that some of them were not satisfied, and said that some of them wanted all of his property, and let the rest get nothing. I went up there again on Sunday morning, about 10 days before he died. He said: 'I have something to tell you, if I can get a chance. You know I made my last will, and made it to my heart's desire. I have been aggravated and provoked to do what I didn't want to do. I am sorry; but I can't help it now. I have changed my will, but not as I desired. I was forced to do it. I can't help it now.' He burst out crying, and said he had to do it, or be thrown in the road. He was living in Mr. J. P. Jackson's house. He said: 'You know who paid for the building of this house, and who paid for the work and labor on this house. It is hard to be threatened to be thrown into the road; that has caused me to do what I have done.' I was there on Monday night, and he died Tuesday."

Edna Fowler, a witness for the caveators, testified: "I know the day that Mr. Fowler made his first will. I was down there. He told me he had willed all of his children an equal share and his grandchildren one-half share each. He said: 'I have done as well as I could, and to my heart's desire.' About two weeks after that, I went to see him. He was crying. He told me that he bought that mantelpiece and paid for it, and bought his pump and paid for it out of his own pocket, and said: 1 paid for the sawing of the lumber in this house. I paid for every day's work on it out of my own money. It is pretty hard, don't you think, for me to do that much for one of my children, and for him to threaten to throw me out in the road, and my wife in the condition she is in?' His wife was in a perfectly helpless condition. Two or three days after that, I was down there again. He was crying, grieving very bad, and said he was feeling very bad. He said, 'My troubles are more than my afflictions.' I asked him what he was troubled about. He replied: 'If J. P. Jackson and Forest Barnes don't quit harrassing and tormenting me about my will, I shall lay it in the fire and burn it up, and what is left after my death can be divided by law.'"

The caveators introduced a witness, Rena Jackson, a granddaughter of the testator, who testified to declarations of the testator, which were made after the execution of the paper, tending to show that it had been procured by undue influence. This witness was a devisee under the will to which the caveat was filed, and it is admitted that she will receive less as an heir, if the will is set aside, than she would if it is sustained. It also appears that the testator had made a prior will, and if the caveators succeed in this case that will would be unrevoked, if it had not been canceled. We infer from the admission and the facts stated in the case that it was canceled or destroyed. It does not appear that she was a beneficiary under that will. The court excluded the testimony of Rena Jackson, and charged the jury that there was no evidence of undue influence, and that they should answer the second issue, "No." The caveators excepted and appealed.

R. L. Godwin, E. F. Young, and N. A. Townsend, for appellants.

Douglass & Lyon and J. C. Clifford, for appellees.

WALKER. J. [1] The ruling of the court, by which the testimony of Rena Jackson was excluded, was erroneous. Her interests will be adversely affected by the result of this proceeding, if the will is set aside. She testified against her own interest; and in the case of In re Worth's Will, 129 N. C. 223, 39 S. E. 95G, it was held that, by reason thereof, she Is not disqualified by Revisal, § 1031 (Code, § 590) to testify, as the prohibition of the statute only extends to those cases In which the witness testifies in her own behalf or interest, which clause was not in...