Love v. Johnston

• Citation: 12 Ired. 355,34 N.C. 355
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 August 1851
• Parties: JAMES R. LOVE et al. v. HUGH JOHNSTON et al.

12 Ired. 355

34 N.C. 355

JAMES R. LOVE et al.

v.HUGH JOHNSTON et al.

Supreme Court of North Carolina.

August Term, 1851.

Unpublished wills of the supposed testator are admissible in evidence, as to questions of capacity and undue influence, as they tend to show intelligence and a settled purpose to make dispositions, like those contained in the script in contest.

Where, on the trial of an issue, devisavit vel non, the declarations of a party are given in evidence, and it appears afterwards, that those declarations were in fact in favor of his own interest, though apparently against it, the Court may, at any stage of the trial, direct the jury to disregard them.

The proceeding, in probate causes, is not similar to those at common law, for in its nature, it is a proceeding in rem, to which there are no parties in the strict sense of the common law, and the Court retains that exclusive power over the subject, which arises from the provision in the statute, that the issue “is to be made up under the direction of the Court.” The Court may modify the issue, both in respect of the scripts and parts of scripts, and of the positions of the parties in interest, so as to have the contest upon the issue determined conclusively, and upon its merits as existing in fact.

There cannot be republication, by oral declarations merely, of what purports to be an attested will; and it is doubtful whether there can be of a holograph. As to a paper purporting to be an attested will, thore cannot be a republication, unless by a re-execution of the same instrument, or by the execution of a codicil, with the ceremonies required by the statute.

When one script only is put in issue, and that is but part of the will, the verdict ought not to be against it altogether, but should, rather, be according to the truth--that it is a part. Upon such a finding, the parties would be under the necessity of asking the Court to set it aside, and re-model the issue?? so as to embrace both scripts; and thus the whole case would be properly brought up.

Appeal from the Superior Court of Law of McDowell county, Spring Term, 1850, Judge CALDWELL presiding.

This is an issue of Devisavit vel non, to try the validity of a script, bearing date May 13, 1842, offered for probate as the will of Robert Love, deceased. James P. Love, Dillard Love, John B. Love, William Welch, Dorcas Henry, and Robert Love were parties to the issue, as propounders. They were all among the heirs at law, and next of kin of the party deceased, and the script contained a devise or legacy to each of them, and the four first-named were nominated as some of the executors thereof. The probate was contested by others of the heirs and next of kin, upon the ground of want of capacity, and undue influence; and it was also insisted, that the script did not contain the whole of the will, but only a part of it.

The script is set out in the bill of exceptions, and purports to be signed by the party deceased, and attested by two witnesses, William H. Thomas and William Allman. They deposed on the trial, that, at the date of the script, they went, by request from Love, to his house, and were told by him, that he wished them to witness his will; that some one, without his knowledge, had cut his name from a will he made in 1834; that he then produced the script in contest, and that of 1834, and after making some additions to the former, Love executed it, and they attested it; and then Love re-executed that of 1834; and that both the papers were then put under one cover, sealed up together, and locked up. The witness Allman further deposed, that when the script of 1842 was executed, Love said, if that did not stand, or any accident happened to it, he wished that of 1834 to stand, and that, upon saying so, he executed the latter. The witness Thomas further deposed, that Love said, that the old will was signed to cure the defect caused by his name being torn off; that the new will was made to provide for the change made necessary in the disposition of his property. The witness further deposed, that the larger part of the party's estate was not embraced in the will of 1842.

On the part of those opposing the probate, the declarations of John B. Love, William Welch, Dorcas Henry and Robert Love, that the party deceased was of unsound mind at the time he executed the writings, on the 13th of May, 1842, were given in evidence, without objection from the other side. The propounders then offered in evidence two writings, purporting to be two unfinished wills of the party deceased, written by himself, and containing numerous dispositions of parts of his estate, which, as far as either went, conformed to those of the script in contest. They were objected to, but were received by the Court.

In the argument to the jury, the counsel in support of the will insisted, that in point of fact, John B. Love, William Welch, Dorcas Henry and Robert Love were interested against the probate, and therefore, that their declarations ought not to be heard in opposition to it. Counsel on the other side did not deny, that the interest of those persons was in opposition to the probate, but urged that the evidence of their declarations was, nevertheless, competent.

In summing up to the jury, the presiding Judge advised them, that, as those four persons were interested to break the will, their declarations ought to have no weight against it. He further instructed the jury, that it was competent to re-publish a will by parol, and also competent for the party deceased to declare, at the time of executing the two writings, which of them was his will; and, consequently, that, if they believed the statement of the witness Allman, the script in contest, dated in 1842, was his will; but that, if they believed the statement of the witness Thomas, then the two scripts together, namely, that dated in 1834, and that of 1842, constituted but one will, and then they ought to find against that of 1842, because it was not the last will, but only a part of it.

The jury found for the propounders, and the other side appealed.

Avery and Gaither, for the plaintiffs .

J. W. Woodfin, for the defendants .

RUFFIN, C. J.

The unfinished wills were admissible as evidence to both of the points of capacity and undue influence; as they tended to show intelligence and a settled purpose to make many of the dispositions contained in the script in contest. Minutes for a will are common evidence of capacity and the animus testandi; and letters, or verbal declarations, containing expressions of preferences for particular persons, or importing a voluntary purpose of making particular dispositions, are the ordinary means of rebutting the imputation of undue solicitation or influence.

With our mode of trying contests about the validity of wills, by jury, there is naturally associated the ideas of parties and the rules of evidence applied to similar trials in a proceeding at common law--in which the side, on which one is a party, corresponds with his personal interests. Hence, a notion seems to have been somewhat prevalent, that in contests of this kind, a party in interest one way may be most useful to himself and those in the like interest, by taking on the record a position in opposition to the side on which his interest lies, so as to make deelarations, apparently against, but in reality for, himself, and have them offered in evidence by those in interest and conspiring with him. The case of Enloe v Sherrill, 6 Ire. 212, is an instance of such an attempt, which was defeated; and this case seems to be another, which also properly met the same fate. Against such practices the Profession ought to guard the Court, and, no doubt, would, if cognizant of the fraud, at the framing of the issue. But, if not discovered then, it is the duty of the Court, whenever it may be discovered, to protect itself and the parties in interest from imposition; and it is, of course, within the province of the Court to frame such rules, as to the mode of conducting such proceedings, as may be effectual to that end. The proceeding in probate causes is not similar to those at common law, though the trial in each be by jury; for, in its nature, it is a proceeding in rem, to which there are not parties in the strict sense of the common law, and the Court retains that exclusive power over the subject, which arises from the provision in the statute, that the issue is “to be made up under the direction of the Court.” There is no doubt, we think, that, when the purposes of justice require it, the Court may modify the issue, both in respect of scripts and parts of scripts, and of the positions of the parties in interest, so as to have the contest upon the issue determined conclusively, and upon its merits, as existing in fact, and not as they may be made to appear upon the declarations of fictions fabricated for the purposes of defeating a decision accordant with the very fact. In the Courts of Probate in our mother country, the propounding is on oath; and probate in common form may pass on that alone. Our statute requires proof by at least one witness, in every instance, and hence it has come to be the usage not to swear the executor at the propounding, but only to...