Lee v. Lee

• Decision Date: 30 June 1874
• Citation: 71 N.C. 139
• Court: North Carolina Supreme Court
• Parties: GERARD LEE and others v. BLACKMAN LEE and others.

71 N.C. 139

GERARD LEE and others

v.BLACKMAN LEE and others.

Supreme Court of North Carolina.

June Term, 1874.

It is no objection to a tales juror, that his name does not appear on the jury list, as made out by the County Commissioners; and a challenge for that cause was properly overruled.

On the trial of an issue, devisavit vel non, no presumption of fraud, as a matter of law, arises from the fact that one of the legatees was a general agent of the testator; and the charge of the Court that in such cases fraud was to be determined by the evidence, was correct.

( Lee v. Pearce, 68 N. C. Rep. 76, cited and distinguished from this.)

Issue of DEVISAVIT VEL NON, tried before Buxton, J., at Spring Term, 1874, of HARNETT Superior Court, to which it had been removed from the Superior Court of Sampson county.

Pharaoh Lee, the alleged testator, was an aged white man, who lived and died unmarried in the county of Sampson. The paper writing, purporting to be his last will and testament, was offered for probate in the Probate Court of Sampson county, by the propounders, who are colored people and former slaves of the testator, and mentioned as legatees in the will. The caveators are brothers and sisters, and the children of deceased brothers and sisters, heirs at law and next of kin of the testator.

Upon the trial the caveators challenged a person called as a tales juror for cause. The grounds of such challenge and the facts connected therewith, are fully stated in the opinion of Justice SETTLE. The presiding Judge overruled the challenge, upon which the caveators excepted.

It was admitted that the testator had sufficient mental capacity to make a will at the time of the execution of the paper writing propounded, but the caveators insisted:

1. That the paper writing purporting to be a will had never been duly executed.

2. That if duly executed, its execution was procured through fraud and undue influence, practiced upon and exerted over the testator by the propounders or by some of them.

The evidence was voluminous, and not relating immediately to the points upon which the case was decided, is omitted.

His Honor charged the jury: That the mental capacity of the supposed testator being conceded, only two questions are presented by the evidence and argument of counsel:

1. Was the paper writing propounded as the last will and testament of Pharaoh Lee, duly executed by him in the presence of two witnesses, who subscribed their names in his presence and at his request? His Honor had passed upon this question before allowing the paper to be read in evidence, and had decided that the propounders had made a prima faciae case. It was for the jury, however, to pass upon the credability of the witnesses, and the Court charged that if the jury believed the evidence of the subscribing witnesses and of the draughtman of the will, then all the requirements of the law had been complied with.

2. Was the paper propounded really the last will and testament of Pharaoh Lee, deceased, or was it, through undue influence exercised over him, not his will, but the will of somebody else?

In determining this question, all the circumstances and surroundings attending its execution, were to be considered by the jury. The Court had even allowed the politics of the draughtsman and of the subscribing witnesses to be given in evidence, along with the color of the propounders, and to be made matters of comment, not for the purpose of exciting prejudice, but to assist in ascertaining whether it was his will, by showing the points of sympathy between them and the legatees.

Against all feeling of prejudice, the Court cautioned the jury and charged that in this case there is no presumption of fraud in law, growing out of the relations existing between the supposed testator and the legatees, as disclosed in the evidence. That in this case fraud was a matter of proof, an open question of fact, to be determined by the evidence.

His Honor further charged that in cases of wills, fair persuasion is admissible; it is permitted to remind a testator of previous promises made by him, or of past services rendered by the legatee. Undue influence is forbidden. To be undue, the influence must be fraudulent and controlling--such a influence as would cause a man to make a will which he would not otherwise have made.

Upon the request of the caveators, his Honor gave the following special instructions:

“In this case, if the jury believe it, there is evidence of undue influence over the supposed testator, and sufficient evidence to set aside the will, unless the evidence on the part of the propounders turns the scale on their side.” To which his Honor added: The propounders have offered counter evidence. It is for the jury to decide between them. The question for them to respond to is, “Is this his will at that time?” If it was at that time not his free, voluntary act and will, but was executed through fear, coercion or improper influence of the legatees, or of others, then the jury will find against it. But if at the time it was executed, it was his free, voluntary act and will, executed just as he wanted it, then they would find in favor of the will, even though they might think from the evidence that he afterwards changed his mind. For if he changed his mind, he should have changed his will, by destroying the old or making a new one, this being the only way the law allows for revocation.

There is no evidence in this case of any revocation with the formalities required by law.

The jury returned a verdict in support of the will. The caveators moved for a rule for a new trial upon the following grounds:

That the Court erred in ruling that the tales juror objected to was competent to set on the trial;

That the Court erred in allowing the will to be read in evidence;

That the charge of the Court that in this case “there is no presumption of fraud in law, growing out of...