In Re Franks' Will.

• Decision Date: 14 December 1949
• Docket Number: No. 450.,450.
• Citation: In Re Franks' Will., 56 S.E.2d 668, 231 N.C. 252 (N.C. 1949)
• Parties: In re FRANKS' WILL.
• Court: North Carolina Supreme Court

56 S.E.2d 668

231 N.C. 252

In re FRANKS' WILL.

No. 450.

Supreme Court of North Carolina.

Dec. 14, 1949.

Proceeding in the matter of the will of T. M. Franks.

The Superior Court, Wake County, Henry L. Stevens, J, entered judgment for the propounder, and the caveators appealed.

The Supreme Court, Denny, J., held that the findings were sustained by the evidence and that no prejudicial errors had occurred and affirmed the judgment

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Issue of devisavit vel nan decided in favor of propounder.

T. M. Franks died in February, 1948, leaving a last will and testament dated September 12, 1940, which was duly admitted to probate in common form in Wake County.The widow of the testator and all his children and grandchildren, except his son, David Preston Franks, chief beneficiary under the terms of the will, caveat-ed the will and it was propounded for probate in solemn form.Four issues were submitted to the jury and answered as follows:

"1.Was the paper writing propounded, dated the 12th day of September, 1940, executed by T. M. Franks, according to the formalities of the law required to make a valid last will and testament?Answer: Yes.

"2.At the time of signing and executing said paper writing did said T. M. Franks have sufficient mental capacity to make and execute a valid last will and testament?Answer: Yes.

"3.Was the execution of the paper writing, propounded in this cause, procured by undue influence, as alleged?Answer: No. "4.Is the said paper writing referred to in IssueNo. 1, propounded in this cause, and every part thereof, the last will and testament of T. M. Franks, deceased?Answer: Yes."

From judgment on the verdict, the caveators appeal and assign error.

Bickett & Banks, Raleigh for propounded.

Simms & Simms, Raleigh, for caveators.

DENNY, Justice.

The grounds relied upon by the caveators in the trial below were non-execution, mental incapacity and undue influence.

The caveators except and assign as error the following portion of his Honor's charge: "Now, Gentlemen, if this evidence satisfies you by its greater weight that Mr. T. M. Franks did sign this paper in the presence of Mr. Johnny Murray and Mr. F. T. Carroll, and asked them to sign it as subscribing witnesses and he also signed it, and has further satisfied you by its greater weight, the burden being upon Mr. D. P. Franks, that they were told by him that he had signed the paper and that he requested them to sign it and that they signed as subscribing witnesses, that all of these witnesses were requested to sign by him as subscribing witnesses and they all signed as such in his presence and at his request, then that would constitute what the law calls a formal execution of the paper writing and under those circumstances, nothing else appearing, if the evidence satisfies you that the requirements, as I have indicated them, of the law, were complied with, then you would answer the issue Yes, the first issue, unless the evidence satisfies you that at the time he made the will he did not have mental capacity, what is known as testamentary capacity, that is, that the execution was procured by undue influence."

This assignment of error challenges the sufficiency of the evidence to show that T. M. Franks executed his will according to the formalities required by law.

Johnny Murray and J. T. Carroll, the subscribing witnesses, each testified that he signed the purported will of T. M. Franks at his request and in his presence, but not in the presence of each other.

J. T. Carroll testified that Mr. T. M. Franks requested him a time or two to stop by in passing, "that he had a paper he wanted to get me to sign, so I stopped in, and he brought the paper out.He told me what it was, and I signed it in his presence."Later in the trial this witness was recalled, and counsel for propounder asked this question: "I don't recall whether I asked you or not, but please state whether or not the purported will of Mr. Franks was signed by him at the time you signed it."Answer: "Yes, it was."

Johnny Murray testified, Mr. Franks requested him to come to his house, "that he wanted him to sign his will, and so he did, and he was in Mr. Franks' home, in the sitting room, the two were present and no one else.* * * Mr. Franks brought the paper in the sitting room and that he(the witness) signed it."In response to a question as to what statement, if any, Mr. Franks made concerning the paper, the witness said: "Well he told me that was the will he wanted me to sign. * * * " Thereafter, on cross-examination by counsel for the caveators, the witness, according to the record, testified "that he did not see Mr. Franks sign the paper, that it was already signed when the witness signed it; when the witness signed it, Mr. Franks' name was already on it."

It is not necessary for a testator to sign his will in the presence of the attesting witnesses.However, he must do so, or acknowledge his signature in their presence.This acknowledgement need not be in words, but may be by acts and conduct.And, while subscribing witnesses to a will must sign such instrument in the presence of the testator, it is not required that such witnesses sign in the presence of each other.In re Will of Bowling, 150 N.C. 507, 64 S.E. 368;In re Herring's Will, 152 N.C. 258, 67 S.E. 570;Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089, Ann. Cas. 1915A, 870;In re Broach's Will, 172 N.C. 520, 90 S.E. 681;In re Will of Deyton, 177 N.C. 494, 99 S.E. 424;In re Will of Johnson, 182 N.C. 522, 109 S.E. 373;In re Will of Fuller, 189 N.C. 509, 127 S.E. 549;In re Will of Kelly, 206 N.C. 551, 174 S.E. 453;In re Will of Etheridge, 229 N.C. 280, 49 S.E.2d 480.

In order to prove the formal execution of a will by subscribing witnesses, as required by G.S. § 31-3, it must appear that the will was signed by the testator or some other person in his presence and by his direction, and subscribed in his presence by at least two witnesses.Watson v. Hinson, supra.And when the testator does not sign the will in the presence of the witnesses, the signature should be acknowledged by him.This acknowledgement, however, which may be inferred from the acts and conduct of the testator, In re Herring's Will, supra, presupposes that the testator had signed his purported will prior thereto.

The law contemplates that the signing of a will by the testator shall precede the attestation, or that the testator and witnesses sign cotemporaneously in the presence of each other, so as to constitute one transaction.Cutler v. Cutler, 130 N.C. 1, 40 S.E. 689, 57 L.R.A. 209, 89 Am.St.Rep. 854.There must be a signature to acknowledge or attest before there can be an acknowledgement or attestation.In re Will of Pope, 139 N.C. 484, 52 S.E. 235, 7 L.R.A., N.S., 1193, 111 Am.St.Rep. 813, 4 Ann.Cas. 635;In re Will of Baldwin, 146 N.C. 25, 59 S.E. 163, 125 Am.St. Rep. 466;In re McDonald's Will, 219 N.C. 209, 13 S.E.2d 239.In Re Will of Pope, supra, [139 N.C. 484, 52 S.E. 236], Hoke, J., speaking for the Court, said: "In construing the statute as to written wills, with witnesses, it is accepted law that the witness must subscribe his name to the paper writing animo testandi, in the presence of the testator, and after the testator has himself signed the same."

In this case, we have the testimony of the subscribing witnesses to the effect that the purported will was already ligned when they subscribed their names as witnesses thereto.Carroll's testimony bearing on this point, is to the effect that the purported will of Mr. T. M. Franks was signed by him at the time he(the witness) signed it.And the other subscrib ing witness testified on direct examination, that he knew the handwriting of the testator, and on cross-examination he testified that when he witnessed the purported will "it was already signed * * * Mr. Franks' name was already on it."

This evidence, when considered in the light of the testator's conduct in procuring these neighbors to witness his will, and his statement to the witnesses that the instrument was his will, together with the fact that his name already appeared thereon, is sufficient to meet the requirements of the statute as to the formal execution of the will.Moreover, no question has been raised by the caveators, as to the genuineness of the signature of the testator.

Therefore, the above portion of the charge was not prejudicial to the caveators, and the exception thereto will not be sustained.On the other hand, if the jury had answered the first issue in favor of the caveators, the propounders might have shown error, since the Court instructed the jury in sum and substance that if the testator had already signed the will when the witnesses subscribed their names thereto, the jury was required to find that the testator told the witnesses at the time they witnessed the will that he had signed it.The acknowledgement of his signature in words, as heretofore pointed out, is not necessary, but may be inferred by the acts and conduct of the testator.In re Herring's will, supra.

The caveators further complain of the instruction on the first issue because his Honor, added these words: "Unless the evidence satisfies you that at the time he made the will he did not have mental capacity, what is known as testamentary capacity, that is, that the execution was procured by undue influence."The burden on this issue was on the propounder, and the instruction was not prejudicial to the caveators.

Exceptions 4 through 21½ and 23 and 24, are directed to the admission of the testimony of Mr. Sam Morris, who prepared a will for the testator in 1937, and redrafted the instrument at the request of the testator in 1940, making certain minorchanges therein, none of which, according to the testimony, affected or in any way changed the devise now under attack.And the substance of Mr. Morris' testimony is to the effect that in 1937he drew a will for Mr. Franks; that Mr. Franks gave him all the information...