Appeal from Superior Court, Yancey County; J. W. Pless, Jr., Judge.
Proceeding in the matter of the will of Cornelius R. Williams, deceased, to the probate of which caveat was filed by W. H. Williams and others. From an adverse judgment, the caveators appeal.
No error.
This is a proceeding in rem--a caveat to the Will of Cornelius R. Williams-- under N.C.Code, 1935 (Michie), Section 4159 et seq. Williams left surviving him his widow, Daisy Williams, and the following heirs-at-law: W. H. Williams, Charlie Williams, Charlotte Byrd and Jane Taylor; Mack Williams, now deceased, who left the following children: Edith Williams, Lula Williams, Troy Williams, Minnie Williams, Mae Williams, Faye Williams and Thelma Williams, who are infants and W. D. Atkins was appointed their Guardian ad litem. Citation was duly issued for all the heirs at law of C. R. Williams and devisees and legatees under the purported will. In the caveat proceedings the record discloses "W. H. Williams, Charlie Williams, Charlotte Byrd and Jane Taylor, caveators, respectfully show to the Court", etc.
Jane Taylor and Charlotte Byrd for answer to the caveat say, in part: "These heirs-at-law of the late Cornelius Williams declare that the paper-writing filed with the Clerk of this Court is the true and proper will of their brother, Cornelius R. Williams, and each and every part of said will is in his own handwriting. That neither of these respondents ever authorized anyone to file a caveat to said will in their behalf, and now repudiate the said caveat so far as it relates to them. * * * It is not denied that W. H. Williams and Charlie Williams are brothers and Charlotte Byrd and Jane Taylor are sisters of the late Cornelius R. Williams. * * * That each, every and all of the allegations contained in paragraph 6 of the caveat are untrue, as these answering respondents are advised, and said allegations are denied. That these answering respondents verily believe the document in question to be the last Will and Testament of their brother, as he in his life time informed these respondents of his intention to leave his property just exactly as set out in the will. * * * These respondents being desirous that the true intention of their brother be carried out, pray that the Court declare the document filed in the office of the Clerk of the Superior Court, and purporting to be the last Will and Testament of their deceased brother, be declared to be his last and final testament and that he had sufficient mental capacity to execute the same, and that the same and every part thereof is his last Will and Testament."
Daisy Williams, the widow's answer, in part, says: "That each and all the allegations set forth in paragraph 6 of the caveat are untrue and therefore denied, except it is admitted that on the 23rd day of March, 1937, Daisy Williams presented herself before the Clerk of the Superior Court of Yancey County and was appointed administratrix of the estate of her deceased husband, and at that time she did not know of the existence of his Will or that he had ever made a Will, and she, in absolute good faith, qualified as administratrix but a few days after having qualified she found the paperwriting which she later filed as the Will of her late husband, Cornelius R. Williams. That after having been appointed administratrix as aforesaid, this answering respondent was advised that she should look through all the papers of her deceased husband, and see if a Will could be located. That pursuant to such advice she, in the presence of J. Will
Higgins, her brother, Rex Miller and Brown Williams, went through all the papers of her late husband and found the paperwriting which she afterwards presented to the Clerk of this Court and had same probated, as the Will of her late husband, and she surrendered her letters as administratrix, and the order appointing her administratrix was thereupon stricken out and annulled, and that each and every word and figure in said paper writing is in the handwriting of her deceased husband, and is in the exact form in which it was found, and was found among the valuable papers of her late husband, Cornelius R. Williams. In further answer to paragraph 6 of the caveat, this answering respondent says that on the 11th day of March, 1937, her husband complained of being ill and went to the hospital in Asheville on the 17th day of March, and there was never a moment, in the opinion of this affiant, before March 12th, on March 12th and after March 12, 1937, when her husband was not in full possession of his mental faculties, thoroughly understood and comprehended everything he was doing and the same condition on the part of her husband continued until his death; that he was physically able to write, and the paperwriting exhibited as his Will is in his own proper handwriting. And further, that up until the time he was taken to the hospital, he was able to write. And further answer to paragraph 6, this answering respondent says that the disposition of the property under the will of C. R. Williams, corresponds precisely as the said C. R. Williams had indicated several times to this answering respondent and to others, with the manner in which he desired to dispose of his property. Wherefore, this answering respondent prays the court for a judgment declaring the paperwriting which has already been probated in common form, to be the last Will and Testament of the said C. R. Williams, her late husband, and that the same be probated in solemn form."
W. D. Adkins, Guardian ad litem of Edith Williams, Lula Williams, Troy Williams, Minnie Williams, Mae Williams, Faye Williams and Thelma Williams, who, for answer to the caveat in this cause, says: "That in answer to paragraph 6 of the caveat, this guardian ad litem says that he has made an investigation and has examined the paperwriting referred to as Exhibit 'A' and designated as the last Will and Testament of Cornelius R. Williams;that he has examined various papers bearing the signature of Cornelius R. Williams, and which the guardian ad litem verily believes to be the signature of the said Cornelius R. Williams, and having often seen the said Williams write and knowing his signature; and therefore this guardian ad litem avers that the said paper-writing is the last Will and Testament of the said Cornelius R. Williams, and the allegations of paragraph 6 of the caveat inconsistent with the allegations contained in this paragraph are hereby denied. This guardian ad litem avers, however, upon information and belief, that the said Daisy, Williams was appointed administratrix be-fore she knew that any will existed and before the last Will and Testament of Cornelius R. Williams was found among his valuable papers. It is denied that the said Cornelius R. Williams was so sick and incompetent that he did not have sufficient mental capacity to execute said will, but on the contrary this guardian ad litem is advised, informed and verily believes, that the said Cornelius R. Williams was ration-! al up until his death. That this guardian, ad litem, before filing answer in this cause, made an investigation of the matters in connection with the last Will and Testament of Cornelius R. Williams in order that he might be in position to protect the interests of the said minors, and this answer is the only answer that said guardian ad litem can in good conscience file in said cause. This guardian ad litem prays the Court for a judgment declaring said paper writing referred to as Exhibit 'A' to be the last Will and Testament of the said Cornelius R. Williams and that said guardian ad litem recover the costs in this behalf incurred."
The purported Will is as follows: Exhibit "A". "I, C. R. Williams do hereby will and bequeath to Daisy Williams my wife all my personal property to use as her own. I also will and bequeath to Daisy Williams my wife all my real estate as long as she lives. At her death the real estate is to be divided between Brown Williams and Coy Williams equal. Give Coy Williams the place known as the School House place. Give Brown Williams the home place. Divide the mountain place equal between them. I request Daisy Williams my wife to pay Jane Taylor the amount due her as shown on my account book. Also pay Rexter Miller $100.00 one hundred dollars that I owe him. To this
I set my hand and seal March 12th, 1937. C. R. Williams."
The evidence of the propounders was to the effect that the purported will of Cornelius R. Williams was made on March 12, 1937, Dr. I. W. Bradshaw, an expert physician who had been the family physician for some twenty years and attended him in his last illness, testified, in part: He went to the hospital about 16th or 17th of March. "I have an opinion satisfactory to myself at the time I saw him and think his mental condition was good. At all times that I saw him I think he had physical and mental capacity sufficient to understand that he was making a Will, and the manner in which he was disposing of his property and to whom it was going. (The 12th of March, the day on which the purported Will was signed was on Friday) His temperature was IOOV2 or somewhere along there. The way that I recall it is that on March 12th, according to the calendar I saw him lying on the bed with his clothes on down here in Ramsaytown."
J. Will Higgins testified, in part: 'Well, I think I know the handwriting of C. R. Williams. I have often seen him write. To the best of my knowledge that paper, the signature to it and the body of it is in Neely Williams' handwriting. C. R. Williams and Neely Williams is the same man. Well, I imagine that I lived 400 or 500 yards from him, just across the river. I lived that close to him 18 years. * * * I went over there and she (Daisy Williams) requested me to go through the papers with her and she brought out a drawer; I don't know whether it was a washstand,...
