Outlaw v. Hurdle

• Decision Date: 31 December 1853
• Citation: 1 Jones 150,46 N.C. 150
• Court: North Carolina Supreme Court
• Parties: JOSEPH B. OUTLAW, PROPOUNDER OF THE WILL OF DAVID OUTLAW v. GEORGE HURDLE AND OTHERS, CAVEATORS.

1 Jones (NC) 150

46 N.C. 150

JOSEPH B. OUTLAW, PROPOUNDER OF THE WILL OF DAVID OUTLAW

v.GEORGE HURDLE AND OTHERS, CAVEATORS.

Supreme Court of North Carolina.

December Term, 1853.

According to the practice in this State, a plaintiff may introduce as many witnesses as he deems necessary to establish his case, and if the defendant brings in contradictory witnesses, the plaintiff may call in others to corroborate his first.

The rule of evidence, that a comparison of other writings with the one in contest cannot be allowed to prove hand-writing, is not varied by the fact that such writings are in evidence for other purposes. Writings are not properly submitted to a jury's inspection, but they should be read. As a general rule, all evidence is addressed to the hearing of the jury, and not to their sight.

The dispositive character of a script propounded for probate, can be proved by evidence dehors the paper.

In order to entitle a holograph will to probate, the hand-writing of the deceased should be so generally known as to preclude fabricated wills.

The character of an individual opposing an instrument for probate cannot be considered in determining on the genuineness of the paper.

THIS was an action of DEVISAVIT VEL NON, tried before his Honor Judge MANLY, at a Special Term of Wake Superior Court, held on the 3d Monday of June, 1853.

The paper writing propounded for probate, as the last will and testament of David Outlaw, is as follows:

“It is my wish and desire that my good friend and relative, Dr. Joseph B. Outlaw, have all my property of every description.

DAVID OUTLAW.

Dec. 20th, 1848.”

The plaintiff's counsel produced witnesses, who deposed that the deceased died at the house of the propounder, on the morning of the 21st of March, 1849, about half past five o'clock; that he was buried on the afternoon of the next day; that, about seven o'clock in the evening of that day, the propounder went from the dining room into his wife's apartment, separated from that room by a narrow passage, and spoke to his wife, who went into a part of the room where the bureau stood, out of sight of the witness deposing to the fact, when he heard the sound of the unlocking of the bureau drawer, when she presently returned, and handed to the propounder a small trunk, well known as having been the property of the deceased in his life-time, and to have often been referred to by him as containing his valuable papers and effects, and delivered the same to the propounder, who brought it into the dining room, and placed it on a table between him and the witness; then unlocked and opened it, and taking out a considerable number of bonds, (in large sums, due and payable to the deceased,) wrapped up in a paper cover; upon examining which, the paperwriting, propounded as a will, was found at the bottom, and making a part of the bundle; the bonds being all labelled with the names of the obligors, and the amount of the bonds, but the paper-writing had no endorsement upon it. During a previous part of the day, the propounder had asked the witness, (Spivey,) who assisted him in the examination of the trunk, whether it would not be proper to have an examination of deceased's papers, and witness replied that it would; and for that purpose he had better send for some of the neighbors; in reply, the propounder asked, “will not you answer?” witness said “yes.” This witness was a lawyer, and was consulted by the propounder professionally; but, being an old friend, and having been his client, he charged him nothing. Afterwards, and immediately before propounder went to the trunk, as before stated, witness said to him, now is a good time to attend to that business; upon which propounder rose and went for the trunk. The propounder then called six witnesses, who deposed to being acquainted with the hand-writing of the deceased, by having seen him write, and having corresponded with him, who severally deposed that the said paper-writing, and every part thereof, including the signature, was, in their opinion, in the genuine hand-writing of the deceased, and was written by him.

It was also in evidence, on the part of the propounder, that the deceased, on his arrival at the plaintiff's house, on the 16th of March, gave the little trunk before mentioned to plaintiff's wife for safe-keeping; that he complained of being unwell; continued so until Sunday, when he took his bed, and died, as before stated, on Wednesday morning next after.

The propounder's counsel then stated to the Judge that he wished to reserve the examination of the other witnesses until after the witnesses for the other side were examined, and their case closed, insisting that by law they had a right so to do, and desired his Honor's opinion thereon;--the caveators' counsel insisting that the propounder was bound, in his opening, to examine all the witnesses whose testimony was proper and admissible in chief, and could not, after the caveators' case should be closed, offer any testimony except such as should be called for and made admissible in reply thereto.

Upon this question the Court expressed the opinion that the practice in North Carolina had been in accordance with the propounder's views, and declared its intention of following, on this occasion, the established usage.

The propounder's counsel accordingly reserved this evidence, and offered the same, as hereinafter stated, after the close of the defendants' case--to which the caveators, by their counsel, excepted.

The counsel for the caveators produced as a witness one Stephen Moore, of Hillsboro', who deposed that, in the Spring, or early in the Summer, of 1847, at Hillsboro', the deceased applied to him to prepare a will, which he did, and it was executed, and attested by two subscribing witnesses; the testator charging Moore to keep secret both the contents of the will, and the fact of his having made one, and left the will with him for safe-keeping.

By this will, legacies were given to the various members of the Hurdle family, and to a daughter of the propounder; the residue to the caveator George Hurdle; and George Hurdle, and Benjamin Hurdle, another of the caveators, were named executors.

This witness, Moore, further proved that he retained this will in his keeping till the Summer of 1848, when the deceased, proposing to make some alterations, a new will was prepared and executed and duly attested. By this will, some additional legacies were given, the legacy to Miss Outlaw increased from one to two thousand dollars, and George Hurdle named sole executor and residuary legatee. This will was left in Moore's keeping until the 4th of December in that year, when the deceased, being about to go from Hillsboro' to the low country, declaring his intention of returning in the Spring, called upon Moore for the will, saying he would take it with him; and it was accordingly delivered to him.

In both of these wills, provision was made for the liberation and support of his slaves; and in the conversations with Moore, upon the occasion of writing them, the deceased stated that the propounder, and one Bagley, and Mrs. Parker would be disappointed in the disposition he was making of his property; but that the propounder was an extravagant man, and property would do him no good.

The caveators produced one Lawrence as a witness, who deposed that the deceased came to Raleigh in the evening of the 19th December, 1848, spent the night at his house, and left the next morning; and by another witness, caveators proved that he met the deceased, about mid-day of the 20th, near to the house of one Clayton Lee, to which he was going, and which is distant from Raleigh, on the road to Louisburg, about fourteen miles.

One Holloway was then called by the caveators, who deposed, that the deceased came to his house, which is about nine miles from Raleigh, on the road to Hillsboro', on the 9th of March, 1849, and remained until the 12th of the same month; on the morning of which last day he said, that he had in his trunk his will, written by Stephen Moore, of Hillsboro'; that he had directed his slaves to be settled, by that will; and that, when he died, George Hurdle would see what to do,--how to settle his slaves,--and would find enough to satisfy him for his trouble; that, rather than the propounder should have his property, he would put it in the fire; that he was going down the country to get a negro he had given away, in order that he might be liberated with the rest of his slaves; and the witness saw in his possession a bundle, out of which he took a five dollar note, and which appeared to witness to contain a considerable sum of money. He said, on cross examination, that he did not see but one bill, so as to know the amount of it, but he thought he saw a good many; but of this he could not be certain.

The deposition of Clayton Lee was then read by the caveators' counsel, to the effect, that the deceased left his house on the morning of the 16th of March, 1849, going, as he said, to the house of the propounder in the County of Franklin, at the distance of 26 miles from the house of witness; that, at one moment, the deceased proposed leaving with him the little trunk before mentioned, in which he said was his little all, and told witness, in the event of his death without returning, to be sure and write to Ben Hurdle, and let him have the trunk.

The caveators then examined thirteen witnesses, who severally deposed to their acquaintance with the hand-writing of the deceased, and that, in their opinion, the paper-writing in question was not in his hand-writing.

The caveators then offered to exhibit to the jury a large number of letters in the hand-writing of the deceased, (and which had been produced, some by the propounder and some by the caveators, on a former trial of this cause, and retained and impounded by order of the Judge who then presided,) for the purpose of showing that the deceased always used the contraction “its,” for “it...