Mullen v. Helderman

• Citation: 87 N.C. 471
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1882
• Parties: JAMES MULLEN, Ex'r, v. SARAH D. HELDERMAN.

87 N.C. 471

JAMES MULLEN, Ex'r,

v.SARAH D. HELDERMAN.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

ISSUE of devisavit vel non tried at Fall term, 1881, of LINCOLN Superior Court, before Avery J.

Plaintiff appealed.

Messrs. Hoke &.Hoke and Battle & Mordecai, for plaintiff .

Messrs. Schenck & Cobb, Bynum & Grier and Fowle & Snow, for defendant .

SMITH, C. J.

Upon the propounding of the script purporting to be the will of Valentine Helderman for probate, before the probate judge, by James Mullen, the executor therein nominated, Sarah F. Helderman, the associate executrix and surviving wife of the deceased, renounced her said office and caused her dissent to the alleged will to be entered of record. Thereupon the heirs at law and next of kin appeared and filed their caveat thereto, and the cause was transferred to the superior court, where an issue was prepared and submitted to the jury in these words:

Is the paper writing, or any part thereof, and if so what part, the last will and testament of Valentine Helderman, deceased?

Upon the trial, and after the testimony was heard, the proof of formal execution and sufficient mental capacity in the deceased was not controverted, but conceded by the contestants, who resisted the probate upon the ground of undue influence exerted over the mind and volition of the deceased, by his wife, in procuring the making the instrument in the sole interest of herself and her own children, to the exclusion of the children of the deceased by a former marriage, and in the impairment of that freedom essential to the validity of a dispositive testamentary act.

It appeared in evidence that eight children were born of the first wife, and that soon after her death, which occurred near the close of the late civil war, the deceased, then sixty years old, intermarried with the defendant, Sarah D., who had then attained the age of twenty. There were four children, the fruit of the second marriage, with an interval of two and a half years between the birth of the youngest, of the first and oldest of the last marriage.

In the spring of 1880 the deceased was striken with fever, and from that time gradually declined until his death in July of the same year.

The will was written by the executor and signed by the testator, then passed 74 years of age, on June 29th, a little more than three weeks before.

The executor on his examination in support of the will, among other things stated that the deceased assigned as his reason for giving his property to the last children, that he had paid money for the others and some of them had tried to break him up.

Frank Helderman, the oldest of the children, introduced by the caveators, testified that during his minority he worked with his father upon the old farm, had never received from him any property and had not tried to break him up. He was then asked at what time his father bought the land devised in the will. To this, objection was made and overruled, and the witness answered that it was bought sometime between the years 1850 and 1858 and that himself, his brother Robert, and sister Ann were then in the service of their father. The first exception is to the admission of this testimony.

The three next exceptions are to the reception of evidence of the personal relations and intercourse between the deceased and his wife, to her harsh conduct and violence towards the older children and especially towards Rebecca, the youngest of the class, and at the trial but 18 years of age, in the presence of the father and his submission to such treatment, introduced to show the controlling influence and authority possessed and exercised over the deceased and the entire household. These acts it is needless to recite with greater particularity, since their force and effect belong exclusively to the consideration of the jury.

The fourth exception is to the proofs offered of the wife's repeated efforts to induce the deceased to make his will, and give his property wholly to her children.

The fifth exception is to the testimony of what transpired at the house on the night of the...