In Re Redding's Will.

• Decision Date: 22 November 1939
• Docket Number: No. 388.,388.
• Citation: 5 S.E.2d 544
• Court: North Carolina Supreme Court
• Parties: In re REDDING'S WILL.

5 S.E.2d 544

In re REDDING'S WILL.

No. 388.

Supreme Court of North Carolina.

Nov. 22, 1939.

Appeal from Superior Court, Randolph County; Bobbitt, Judge.

Proceeding in the matter of the estate of Cora E. Redding, for a probate of will propounded by Clifford Nixon, wherein Delbert P. Foster filed caveat. From a judgment on a verdict in favor of the will, the caveator appeals.

No error.

On January 31, 1938, a paper writing propounded by Clifford Nixon as the last will and testament of Cora E. Redding was prepared at her home by G. W. Pugh, a Justice of the Peace, and purports to be signed by her on that date. Cora E. Redding died March 4, 1938. Caveat was filed by Delbert P. Foster, brother of the decedent, wherein it is alleged that the paper writing is not the last will and testament of Cora E. Redding for the reason that at the time of the execution thereof she did not have sufficient mental capacity to make a will and that her signature thereto was procured by undue influence. Clifford Nixon, the propounder, by the terms of the paper writing is made the sole devisee and legatee of the decedent, as well as her executor.

The jury returned the following verdict: "1. Was the paper-writing offered for probate as the last will and testament of Cora E. Redding signed and executed according to law? Answer: Yes.

"2. Was the said Cora E. Redding mentally incapable of making a will? Answer: No.

"3. Was the execution of said paper writing procured by undue influence? Answer: No.

"4. Is the paper-writing propounded by Clifford Nixon, and every part thereof, the last will and testament of Cora E. Redding, deceased? Answer: Yes."

From judgment predicated upon the verdict, the Caveator appealed to the Supreme Court, assigning errors.

J. G. Prevette, of Asheboro, for cave-ator-appellant.

Moser & Miller, of Asheboro, for pro-pounder-appellee.

SCHENCK, Justice.

The proceedings to caveat a will are in rem without regard to particular persons, and must proceed to judgment, and motions as of nonsuit, or requests for direction of a verdict on the issues, will be disallowed. In re Will of Hinton, 180 N.C. 206, 104 S.E. 341; In re Will of Westfeldt, 188 N.C. 702, 125 S.E. 531.

Besides there was ample evidence to sustain the affirmative answer to the first issue. While the witness to the will, Nettie Davis, may have wavered somewhat in her testimony, still she testified "I signed my name there as Nettie Davis. When I signed it I was at the home of Mrs. Redding. I was on the other side. I saw her sign it, " and further, that when she was sent for "he (Nixon) told me Cora was making a will and that she wanted me to sign it." Stacy, C. J., in Re Will of Kelly, 206 N.C. 551, 174 S.E. 453, 454, says: "The law makes two subscribing witnesses to a will indispensable to its formal execution. But its validity does not depend solely upon the testimony of the subscribing witnesses. If their memory fail, so that they forget the attestation, or they be so wanting in integrity as willfully to deny it, the will ought not to be lost, but its due execution and attestation should be found on other credible evidence. And so the law provides."

There was other evidence than the testimony of the witness Nettie Davis that she was present and witnessed the will. It is not contended that the other witness, G. W. Pugh, did not properly sign as a witness to the will. Therefore, the jury was warranted...