In re Mann's Will

• Decision Date: 06 October 1926
• Docket Number: 154.
• Citation: 134 S.E. 649,192 N.C. 248
• Parties: In re MANN'S WILL.
• Court: North Carolina Supreme Court

134 S.E. 649

192 N.C. 248

In re MANN'S WILL.

No. 154.

Supreme Court of North Carolina

October 6, 1926

Appeal from Superior Court, Carteret County; Dunn, Judge.

Proceeding for probate of the will of Thomas S. Mann, deceased. From a judgment sustaining the will, the caveators appeal. Affirmed.

Issue of devisavit vel non, raised by a caveat to the will of Thomas S. Mann. Alleged want of proper execution, mental incapacity, and undue influence are the grounds upon which the caveat is based.

The verdict establishes: (1) That the paper writing propounded was duly executed and published in manner and form as prescribed by statute for the execution and publication of wills; (2) that Thomas S. Mann had sufficient mental capacity to make and execute the same as his last will and testament (3) that the devise made therein to W. H. Bell, and his appointment as executor, were not procured by undue influence; and (4) that the paper writing propounded, and every part thereof, is the last will and testament of Thomas S. Mann, deceased.

From a judgment on the verdict, sustaining the will and ordering it to probate, the caveators appeal, assigning errors.

E. H Gorham and W. C. Gorham, both of Morehead City, and Ward & Ward, of New Bern, for appellants.

C. R Wheatley, of Beaufort, and Luther Hamilton, of Morehead City for appellees.

STACY C.J.

A careful perusal of the record leaves us with the impression that the matter has been heard and determined substantially in accord with the principles of law applicable, and that the validity of the trial should be upheld. All questions in dispute have been settled by the verdict, and no action or ruling on the part of the trial court has been discovered by us which we apprehend should be held for reversible error. The only question presented by the appeal, not heretofore settled by a number of decisions, is the one raised by the following objections to the testimony of W. H. Bell, beneficiary and executor under the will, and one of the propounders:

"Q. Mr. Bell, examine that paper writing, please, and state whether or not you have seen it before. (Objection; overruled; exception.)

Yes, sir; I have seen it before. I am the Bell mentioned in that paper writing as executor, and I drew the paper writing (referring to the three sheets in controversy).

Q. Mr. Bell, those three sheets you have there, were they the same sheets, attached then as they are now, at the time of the execution? (Objection; overruled; exception.)

Yes, sir.

Q. Were they attached then? (Objection.)

Q. By the Court: Is the will now as when he wrote it? (Objection; overruled; exception.)

Yes, sir."

It is urged that this testimony should have been excluded, as violative of the rule against admitting evidence of personal transactions or communications between the interested party and the deceased, but we do not think the evidence in question falls within the inhibition of the statute. True, it has been held that, in a proceeding of this kind, both propounders and caveators are "parties" within the meaning and spirit of C. S. § 1795, which disqualifies a party or person interested in the event from testifying as a witness in his own behalf against the executor, administrator, or survivor of a deceased person, concerning a personal transaction or communication between the witness and the deceased, except where the executor, administrator, or survivor is examined in his own behalf, or the testimony of the deceased person is given the evidence concerning the same transaction or communication. In re Chisman, 175 N.C. 420, 95 S.E. 769; In re Harrison, 183 N.C. 457, 111 S.E. 867; Pepper v. Broughton, 80 N.C. 251. The exclusion of such testimony rests, not merely upon the ground "that the dead man cannot have a fair showing, but upon the broader and more practical ground that the other party to the action has no chance by the oath of the relevant witness to reply to the oath of the party to the action." McCanless v. Reynolds, 74 N.C. 301.

Men quite often understand and interpret personal transactions and communications differently, at best; hence the Legislature, in its wisdom, has provided, that an ex parte version of such matters may not be received in...