In Re Murray's Will.

• Decision Date: 25 May 1906
• Citation: 141 N.C. 588,54 S.E. 435
• Parties: In re MURRAY'S WILL.
• Court: North Carolina Supreme Court

54 S.E. 435

141 N.C. 588

In re MURRAY'S WILL.

Supreme Court of North Carolina.

May 25, 1906.

1. Evidence — Res Gestæ: — Declarations Against Interest.

Where testator made his will while in extremis, by which he gave to his widow an estate for life in the property, evidence that while the will was being executed testator's wife ran into the kitchen where witness was and got water for deceased, saying that she was afraid her husband would die before they could get the business fixed, which declaration was not made either in testator's presence or in the presence of any one connected with the execution of the will, was inadmissible either as res gestæ or as a declaration against interest.

2. Wills—Probate—Beneficiaries — Executors.

Where a will appointed an executor and was properly executed, it was no objection to its probate that there was no beneficiary capable of taking under the will.

3. Same—Construction.

The construction of a will cannot be considered in an application for probate; the probate court in such proceedings having no other jurisdiction than to inquire into the valid execution of the will.

[Ed. Note.—For cases in point, see vol. 49, Cent. Dig. Wills, §§ 522, 523, 1665.]

4. Appeal—Briefs—Exception—Review.

Where appellant's brief does not point out a portion of the charge to which an exception is directed, and the portion objected to is not disclosed on a mere reading of the charge, the exception cannot be reviewed.

5. Charities—Trusts—Validity.

Testator devised his property to trustees to establish and maintain a school for the education in the common school branches of an English education of the poor white children of B. county, N C, living anywhere in said county, said school to be conducted in a building in the city of A., specified, or in any other building in said city which might be selected by the trustees or their successors in office, and specific directions were given with reference to the terms on which the children might be admitted, their age, etc., and provision made for the election of new trustees, etc. Held, that the trust was sufficiently definite to be sustained as a charity.

Appeal from Superior Court, Buncombe County; Neal, Judge.

Petition by Alonzo Rankin and another for the probate of the will of J. L. Murray, deceased, to which John C. Murray and others filed objections. From a judgment admitting the will to probate, objectors appeal. Affirmed.

This was an issue of devisavit vel non. The record shows that the paper writing, purporting to be the last will and testament of J. L. Murray, deceased, a copy of which is set out, is "propounded for probate in open court by Alonzo Rankin and H. S. Harkins, the persons named therein as executors. Whereupon John C. Murray, one of the heirs at law and next of kin to the said J. L. Murray, deceased, comes into court and enters a caveat to the probate thereof, and says that the same is not the last will and testament of the said J. L. Murray, or any part thereof. Thereupon the issue is framed to wit: 'Is the said paper writing, or any part thereof, and, if so, what part, the last will and testament of the said J. L. Murray, deceased, or not?' And the said issue is duly certified to the superior court of Buncombe county for trial in accordance with the statute." Thereupon process was issued to all of the heirs at law and distributees of the said J. L. Murray, deceased, which, being duly served or service accepted by some of them, the issue was brought to trial before a jury and answered in the affirmative. To a judgment in accordance with the verdict, caveators excepted and appealed.

Shepherd & Shepherd. W. J. Cocke, J. M. Gudger, Jr., and H. B. Carter, for appellant.

Moore & Rollins, for appellee.

CONNOR, J. The record contains nine exceptions to the rulings of his honor upon the trial, only six of which are noted in the brief. We will dispose of them in the order presented by the brief.

The first exception which arises is directed to the ruling of his honor excluding the following question propounded to Miss Octie Murray by the caveators; she having testified that the testator was very sick at the time of the execution of the will and acted strangely, and expressed the opinion that he was not capable of transacting any business; that five or six men came into the room of testator when witness went out. Thereupon caveators proposed to ask her the following question: "Did not the wife of the deceased, while the alleged will was being executed, run into the kitchen where witness was and get some water for the deceased, and say she was afraid her husband would die before they could get the business fixed?'' Upon objections of propounders the question was excluded. Exception. It appeared from the will that the wife, whose declarations were sought to be proved, was given an estate for life in the property, but had died...