In re Groce's Will

• Decision Date: 12 December 1928
• Docket Number: 540.
• Citation: 145 S.E. 689,196 N.C. 373
• Parties: In re GROCE'S WILL.
• Court: North Carolina Supreme Court

145 S.E. 689

196 N.C. 373

In re GROCE'S WILL.

No. 540.

Supreme Court of North Carolina

December 12, 1928

Appeal from Superior Court, Yadkin County; Michael Schenck, Judge.

Proceeding for the probate of the will of T. A. Groce, deceased, in which D. R. Groce and another filed a caveat. Judgment for propounder, and caveators appeal. No error.

Proceeding for probate, in solemn form, of paper writing propounded as the holograph will of T. A. Groce, deceased. Caveators, sons of deceased, allege that the execution of said paper writing was procured by fraud and undue influence, and that the said T. A. Groce, at the date of its execution, did not have mental capacity sufficient to make a will. They also contend that said paper writing is not in the handwriting of T. A Groce, and that same was not found among the valuable papers and effects of deceased. The issue submitted to the jury was answered as follows:

"Was the paper writing dated February 2, 1928, and offered for probate, and every part thereof, the last will and testament of T. A. Groce, deceased? Answer "Yes."

From judgment on the verdict, caveators appealed to the Supreme Court.

Benbow Hall & Benbow and E. M. Whitman, all of Winston-Salem, for appellants.

F. W. Hanes and Williams & Reavis, all of Yadkinville, for appellee.

CONNOR J.

T. A. Groce died at the home of a neighbor, in Yadkin county, North Carolina, on February 2, 1928. He lived about a half mile from the home of this neighbor. He had stopped, for a short visit, at his neighbor's home, while returning to his own home from a rural mail box, where he had gone to mail letters to his sons. While there, engaged in conversation, he became ill suddenly, and died almost immediately. After his death, and before his body was removed from the place where he died, in the presence of his sons, caveators in this proceeding, and of friends, who had been notified of his death, an envelope was taken from one of his coat pockets. In this envelope, which was not sealed, was found a paper writing, dated February 2, 1928, which is in form a will, and to which his name is subscribed.

This paper writing purports to be the will of T. A. Groce, by which he devises to his adopted son, Floyd T. Groce, 75 acres of land, "where the said Floyd T. Groce may choose to take it." He bequeaths and devises the remainder of his property, real and personal, to his two sons, D. R. Groce and Albert Groce, and directs that Floyd T. Groce shall pay his debts and funeral expenses, including a tombstone. This paper writing has been probated, in common form, as the last will and testament of T. A. Groce. A caveat was filed to said probate by D. R. Groce and Albert Groce, sons of the deceased.

At the trial of the issue submitted to the jury, more than three witnesses testified that said paper writing and every part thereof, including the signature subscribed thereto, is in the handwriting of T. A. Groce. There was no evidence to the contrary. There was evidence tending to show that each of these witnesses is credible. Their testimony on cross-examination did not contradict their testimony on their direct examination, nor did it tend to affect its probative value as evidence. At most, it tended to affect the credibility of the witnesses only. The jury was properly instructed that, if they found the facts to be as these witnesses testified, they would find that the paper writing, and every part thereof, including the signature subscribed thereto, is in the handwriting of T. A. Groce.

All the evidence tended to show that the paper writing offered for probate was found in the envelope which was taken from a pocket of the coat which deceased was wearing when he died. There was also found in the pockets of his coat and of his overalls money in the sum of $1,499.92; also two pencils, a pocket knife, specks, some receipts, etc. The money was found in the pockets of his overalls; it was mostly in bills, although there were three gold pieces, of the value of $40.

The evidence tended to show that deceased was an old man, and that he and his wife had lived separate and apart for many years. He lived alone. A trunk was found in his house. This trunk was locked, and in it were found, after his death deeds, receipts, and other papers of no present pecuniary value. There was also in said trunk a bank book, showing that deceased had withdrawn from the Wachovia Bank & Trust Company, on May 6, 1927, the sum of...