In Re Westfeldt's Will.

• Decision Date: 10 December 1924
• Docket Number: (No. 534.)
• Citation: 125 S.E. 531
• Parties: In re WESTFELDT'S WILL.
• Court: North Carolina Supreme Court

125 S.E. 531

In re WESTFELDT'S WILL.

(No. 534.)

Supreme Court of North Carolina.

Dec. 10, 1924.

(188 N. C.)

Appeal from Superior Court, Henderson County; Finley, Judge.

In the matter of the last will and testament of Jenny Westfeldt, deceased. From a judgment admitting the will to probate, Gus-taf R. Westfeldt appeals. No error.

On the 22d day of July, 1922, Jenny Fleetwood Westfeldt had probated in Henderson county certain paper writings as the last will and testament of the late Jenny Westfeldt. On the 3d day of October, 1923, caveat was filed thereto; and at the May-June term, 1924, of the superior court of said county, the issue of devisavit vel non was tried.

Jenny Fleetwood Westfeldt, the propounded alleges that certain paper writings propounded by her were the last will and testament of the said Jenny Westfeldt, deceased, and the caveator alleged that such paper writings were not the last will and testament of the said decedent.

The said paper writings are as follows:

Propounder's Exhibit 1.

"If anything happens to me take care of Lulie and Jenny and let my portion of the Rugby Grange property go to them equal parts for each and if there be anything to build them a home with do so—I want to help Alice to get a home too. [Signed] Jenny Westfeldt, Rugby Grange, December 22, 1914."

Propounder's Exhibit 2.

"May 22, 1915, and September 30, 1915. Frankport, Ky. I leave to Lulie Westfeldt, daughter of Patrick Westfeldt, the half of my property and to Jenny Fleetwood Westfeldt the other half—to revert to Lulie Westfeldt in case of Jenny Westfeldt's decease, and should Lulie Westfeldt die without heirs the property to go to Overton Westfeldt Price's children. I leave to Christine Price $1,000, Christine Reynolds $1,000 and to Deaver Lance $300 and to my servants Josephine Clayton, Ella Prince $100 each, to Gertrude and Josephine Pinner $50 each.

"To C. R. Westfeldt whatever he may care for from the Grange, books, furniture, pictures, etc., to M. C. W. Price what she would care for from the Grange. The silver to be divided between Jenny F. W. —Janey Westfeldt. I want all the heirs to have something of Mother's from the Grange. The silver cream pitcher is Christine Reynolds, ' the water kettle is Lulie's, the teapot is Ethel Jane's—the china is also to be Lulie's and Jenny's, Barbara's, Dorothy's and Janey's. [Signed] Jenny Westfeldt."

"Mother's and (father's?) picture is for Kitty Monroe and the Madonna is for Martha —the English Park is Jenny's and the big painting in the hall is to go to the Del Gardo. The books are for Bo first, Wallace, G. R., Jr., and Jenny. The piano is Sissy's and her crayon and the children's are Alice's—the furniture to be divided. [Signed] Jenny Westfeldt."

"I am thinking of them all—Louise and Mary and Llew included and leave Dot and Sister there Dear Jenny F. carry out my wishes."

Propounder's Exhibit 3.

"January 25th.

"I want $3,000 paid to Christine Reynolds and $3,000 to my sister Christine W. Price and if Hunt's gold mine is a success and takes good care of Jenny W. Westfeldt the rest of my property I leave to Lulie Westfeldt. If the gold mine proves not a success I leave my property as I wrote before. [ Signed.] Jenny Westfeldt."

The beneficiaries under the paper writings propounded as the will of Jenny Westfeldt and her heirs at law and next of kin were all notified and citation issued in accordance with law Guardians ad litem were duly appointed for all the infants.

The following issue was submitted to the jury:

"Is the paper writing propounded by Jenny Fleetwood Westfeldt, and consisting of three separate sheets marked (Propounder's Exhibits 1, 2, and 3), and every part thereof, the last will and testament of Jenny Westfeldt, deceased? Answer: Yes."

The court below rendered judgment that the said paper writing and every part thereof, as above set forth and offered for probate by propounder, as the last will and testament of Jenny Westfeldt, deceased, is the last will and testament of Jenny Westfeldt, deceased.

The caveator, Gustaf R. Westfeldt, made exceptions and assignments of error set forth in the record, and appealed to the Supreme Court.

Albert L. Cox, of Raleigh, appellant.

Jones, Williams & Jones, of Asheville, Ew-bank & Whitmire, of Hendersonville, and Haywood Parker, of Asheville, for appellee.

CLARKSON, J. [1] The caveator, in his brief, says:

"The trial judge erred in refusing the motion of the caveator, made at the close of the propounder's evidence and all of the evidence, to dismiss the action and proceedings and for judgment as of nonsuit against the propounder, and to this error of the judge this argument will be principally directed. The trial judge likewise erred in overruling motion of caveator to set aside the verdict, which error will be included in this argument."

"Exceptions in the record not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." Rules of Practice in the Supreme Court, 185 N. C. 798, part of rule.

The caveator introduced no evidence. The record fails to show that he prayed any special instructions. The charge of the court below is not in the record.

In Indemnity Co. v Tanning Co., 187 N. C. 196, 121 S. E. 470, it was said:

"The presumption of law from the record is that the court below charged the law cor-rectly bearing on the evidence as testified to by the witnesses at the trial."

So, the only thing for us to consider, on all the evidence of the propounder, is: Should the proceeding be dismissed or judgment as of nonsuit rendered against the propounder and the verdict and judgment be set aside.

The propounder contends that, on the record, no judgment of nonsuit could have been properly entered or the case dismissed; that the proceeding is in rem.

In Collins v. Collins, 125 N. C. 104, 34 S. E. 195, Faircloth, C. J., said:

"This is a proceeding in rem and the statute confers jurisdiction on the clerk and court. There are no parties, strictly speaking, certainly none who can withdraw or take a nonsuit, and thus put the matter where it was at the start, as in actions between individuals. A nonsuit in the latter case affects no one but the litigants; in the former, creditors, legatees and distributees are interested and they are stayed until the question of testacy or intestacy is determined. The court having jurisdiction, public policy and our statutes require that this preliminary question should be determined as soon as practicable, and require the court to do it, regardless of objecting persons. Hutson v. Sawyer, 104 N. C. 1." In re Hinton's Will, 180 N. C. 214, 104 S. E. 341.

The question of setting aside the verdict and granting a new trial is a matter within the sound discretion of the court below. 15 Enc. Digest of N. C. Rep. p. 112, and cases cited.

The contention of propounder is sustained by authorities in this jurisdiction, but we will consider the evidence in the record in the light most favorable to caveator. On the whole record, should the verdict and judgment be disturbed, as contended by caveator? We think not.

The testimony of Jenny Fleetwood Westfeldt, the propounder, and other witnesses, to establish the validity of the paper writings as the will of Jenny Westfeldt, is undisputed. Dr. H. M. Fletcher, a physician, testified:

"I was born and reared in Fletcher and knew the late Miss Jenny Westfeldt all my life. I knew her very well as a neighbor and friend and knew her after I began practicing medicine as being her physician for a time. In my opinion, in 1914 and 1915, and up to and including the time that I last saw her, on December 24, 1919, she had mind and intelligence sufficient to enable her to have a reasonable judgment of the kind and value of the property she proposed to will and to whom she was willing to will it. I would say that she had a strong mind and strong will. I was not related to her by blood or marriage."

The paper writings found were not witnessed, but propounded as a holograph will. C. S. § 4144, subsec. 2, is as follows:

"In case of a holograph will, on the oath of at least three credible witnesses, who state that they verily believe such will and every part thereof is in the handwriting of the person whose will it purports to be, and whose name must be subscribed thereto, or inserted in some part thereof. It must further appear on the oath of some one of the witnesses, or some other credible person, that such will was found among the valuable papers and effects of the decedent, or was lodged in the hands of some person for safe-keeping."

More than three witnesses—the jury found credible—testified that the paper writings (Propounder's Exhibits 1, 2, and 3) were in the handwriting of Jenny Westfeldt. They were familiar with her handwriting and had often seen her write. One witness, Jenny Fleetwood Westfeldt under the paper writings was a legatee and devisee. Her evidence was competent.

"At common law one who had a direct legal interest in the event of the suit was thereby disqualified as a witness on the side of his interest, but the Revisal, §§ 1628, 1629 (C. S. §§ 1792, 1793), removes such disqualification, and now no person offered as a witness shall be excluded by reason of his interest in the event of the action. By Revisal, § 3120 (C. S. § 4138), devisees and legatees may be attesting witnesses to wills, but their devises and legacies, and any devises and legacies left to their husbands and wives or to any one claiming under such devisees or legatees, are void. But the section only applies to attesting witnesses, and devisees and legatees may be witnesses to prove holograph wills without losing their devises and legacies." Lockhart's Handbook on Evidence, § 39; McEwan v. Brown, 176 N. C. 252, 97 S. E. 20.

There was no evidence that these paper writings were "lodged in the hands of some person for safe-keeping, " so the question involved here is: Were these paper writings "found...