In Re Hedgepeth's Will.

• Decision Date: 10 March 1909
• Citation: 63 S.E. 1025,150 N.C. 245
• Court: North Carolina Supreme Court
• Parties: In re HEDGEPETH'S WILL.

63 S.E. 1025

150 N.C. 245

In re HEDGEPETH'S WILL.

Supreme Court of North Carolina.

March 10, 1909.

1. Wills (§ 231^*)—Probate of Lost Will-Remedy.

The clerk of the superior court may take probate of a lost will, or one destroyed by some person other than the testator, or by the testator not animo revocandi, and it is not necessary to bring a bill in equity to set up the will.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 560; Dec. Dig. § 231.*]

2. Wills (§ 302*)—Probate—Lost Wills-Proof of Contents.

Though in order to have a lost will probated it must be shown to have been executed as required by Revisal 1905, § 3113, the contents of the lost will may be proved by the testimony of one witness if no other is attainable.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 709; Dec. Dig. § 302.*]

3. Wills (§ 303*)—Probate—Lost Wills-Evidence—Attesting Witnesses.

Where a lost will was proved by affidavit to have been executed and attested by affiant and another, and the affidavit showed the death of the other witness and the contents of the will, and was corroborated in every respect, the will was properly admitted to probate in common form by the clerk of the superior court.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 719; Dec. Dig. § 303.*]

4. Wills (§ 214*)—Probate—Caveat.

Under Revisal 1905, § 3135, providing that upon application for probate of a will, or at any time thereafter, any person entitled under the will or interested in the estate may enter a 'caveat before the clerk to the probate, such a person may file a caveat as of common right and require the propounder to prove the will in solemn form, provided the right has not been lost by acquiescence or unreasonable delay.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 521; Dec. Dig. § 214.*]

5. Wills (§ 214*)—Probate in Solemn Form —Burden of Proof.

Where a propounder of a lost will is required by the entry of a caveat to prove a will in solemn form, the burden is upon him to show the formal execution of the will as prescribed by statute, which may be done by calling the witnesses or by accounting for their absence, the contents of the will, and that the original will was lost, or had been destroyed otherwise than by the testatrix or with her consent or procurement.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 521; Dec. Dig. & 214.*]

6. Wills (§ 290*) — Revocation — Presumption.

Where a will is not found, there is a presumption of fact that it has been destroyed by the testator animo revocandi.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 663; Dec. Dig. § 290.*]

7. Wills (§ 214*)—Probate in Solemn Form.

Upon proceedings to probate a will in solemn form, the issue is to be tried upon evidence then introduced, and ex parte affidavits taken before the clerk when the will was admitted to probate in common form are incompetent.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 521; Dec. Dig. § 214.*]

8. Wills (§ 293*)—Probate—Admissibility of Evidence.

In proceedings to probate a lost will in solemn form, evidence that witness had heard some outside person say that she had destroyed the will, and that the beneficiary had never had the land devised to him thereunder, was properly excluded.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 672, 675; Dec. Dig. § 293.*]

9. Wills (§ 290*)—Revocation—Evidence.

In a proceeding to probate a lost will in solemn form, evidence held not sufficient to rebut the presumption, arising from the failure to find the will, that it was destroyed by the testatrix animo revocandi.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 663; Dec. Dig. § 290.*]

Appeal from Superior Court, Nash County; Ward, Judge.

Application by John T. Hedgepeth for the probate of the will of Martha Hedgepeth. From a judgment dismissing the proceedings before the clerk, who admitted the will to probate in common form, the propounder and another appeal. Affirmed.

The record discloses this case: On May 11, 1900, John T. Hedgepeth offered for probate, before the clerk of the superior court of Nash county, a paper writing purporting to be the last will and testament of Martha Hedgepeth, in words and figures as follows, to wit: "North Carolina, Nash County. I, Martha Hedgepeth of Nash county and Nashville township and state of North Carolina, being of sound mind and disposing memory, do make and declare this to be my last will and testament: I give to John T. Hedgepeth, formerly known as John Massengill, son of Martha Massengill, widow of T. Massengill, all my land situate in Nashville township, Nash county, and bounded as follows: S. L. Arrington, Isaac Wombleton and others known as a part of the John Evans land containing forty acres more or less. Martha Hedgepeth. [Seal.] Witness: R. F. Drake. J. C. Harper."

The propounder filed the affidavit of J. O. Harper, setting forth: That he was a subscribing witness to the will of Martha Hedgepeth; that R. F. Drake, the other subscribing witness, is dead; and that said Martha Hedgepeth, in the presence of deponent and R. F. Drake, the other subscribing witness, subscribed her name at the end of said paper writing, of which the one now presented is in substance a true copy, which original bears the date of same time, about 1889 or 1890. The deponent further saith: That the said Martha Hedgepeth, the testatrix aforesaid, did, at the time of subscribing her name as aforesaid, declare the said paper writing so subscribed by her, a copy of which is exhibited, to be her last will and testament; that, at her request, defendant subscribed his name thereto as a subscribing witness, and that she was of sound mind and memory, of full age, etc. Propounder also filed the affidavit of Mrs. Tolie Cooper, setting forth: That she was at the home of Martha Hedgepeth, who was sick, when John C. Harper and R. F. Drake came to write her will. That R. F. Drake wrote the will, and, at the request of Mrs. Hedgepeth, R. F. Drake, after signing and witnessing, handed the will to her husband, L. W. Hedgepeth. Mr. Drake asked Mr. Hedgepeth if he should bring the will with him to Nashville. Air. Hedgepeth answered, "No, " he would be in Nashville in a few days and bring the will with him. After all had left, Martha Hedgepeth told deponent that she had made her will and given all she had to John Hedgepeth. She was of sound mind and disposing memory. Deponent file the affidavit of Jordan Brewer, stating that: "A short time before L. W. Hedgepeth was married the second time, he told deponent, 'there was a will, but John Hedgepeth will never get that land, for I have put that will to ashes.' " Upon the foregoing affidavits the clerk adjudged that the paper writing, and every part thereof, is the last will and testament of Martha Hedgepeth and admitted it to probate in common form.

On March 19, 1906, Mary E. Etheridge and others, heirs at law of Martha Hedgepeth, filed a caveat to said will in the office of the clerk of the superior court of Nash county, whereupon citations were issued to Ruffin Lyon, who purchased the land from John Hedgepeth, and others, heirs at law, to come in and see proceedings. An issue of devisavit vel non was thereupon made up and transmitted to the superior court of Nash county for trial. At the December term, 1907, the issue was tried before the court and a jury, when the following evidence was introduced by the propounders: J. C. Harper testified: "I know Martha Ann Hedgepeth. I was at her house. Capt. Drake was writing a paper. Capt. Hedgepeth sent for me to witness it. Capt. Drake went out and wrote a will, what purported to be a will, and I read it to her. Capt. Drake and I witnessed it. It was in 1889. It willed 40 acres. She said she wanted to give it to John Hedgepeth. I read it to her, and she signed it. I heard it was destroyed, and I do not know anything about it, except it left 40 acres to John Hedgepeth." Mrs. Tolie Cooper testified: "Know Mrs. Hedgepeth. Was there at the time in question. Was there when it was written. She said it was her will. She had given everything she had to John Hedgepeth. It was several years ago. She is dead. I do not know what became of it nor the contents of it." Mrs. Beauregard Griffin testified: "Was the widow of L. W. Hedgepeth. I never saw the will at all. I heard her say she had made the will to keep her out, that she did not want her people to have it." Affidavit of Jordan Brewer offered, and excluded, and exception by the propounder, who assigned said ruling as error. Propounder proposed to show by Mrs. Griffin that she had heard some outside party say that she had destroyed the will, and that John Massengill had never had the land. The propounder offered in evidence the record of a paper writing purporting to be the last will and testament of Martha Ann Hedgepeth, on file in the office of the clerk of the superior court. It was admitted that said paper writing had been made up and written after the death of Martha Ann Hedgepeth on ex parte affidavits before the clerk of the superior court and without any petition having been filed in said proceeding before the clerk to set up the contents of lost or destroyed will, and that no notice had been issued to the parties interested of the proceeding before the clerk in which said will was set up, but that said lost or destroyed will had been proven in common form. It was on objection excluded by the court. The propounder and his grantee duly excepted.

There was no evidence before the court that Martha Ann Hedgepeth, at the time of making the alleged will, had signed said will in the presence of the two witnesses, requested them to sign it, or that they had signed it in the presence of each other. There was no evidence that the will was lost or destroyed. No evidence about it one way or the other. At the close of the propounder's evidence, his honor, being of the opinion that the entire proceeding before the clerk was irregular, and that there was no evidence before the court to show a last...