Roscoe v. John L. Roper Lumber Co

• Citation: 124 N.C. 42,32 S.E. 389
• Parties: ROSCOE. v. JOHN L. ROPER LUMBER CO.
• Decision Date: 28 February 1899
• Court: United States State Supreme Court of North Carolina

32 S.E. 389
(124 N.C. 42)

ROSCOE.
v.
JOHN L. ROPER LUMBER CO.

Supreme Court of North Carolina.

Feb. 28, 1899.

Trial — Dismissal —Wills — Probate — Certificate—Records—Tenancy in Common —Adverse Possession.

1. A motion to dismiss the action at the close of plaintiff's case, under Acts 1897, c. 109, waives the competency of the evidence.

2. The fact that Code, § 2149, requiring a certificate of probate of a will to embody the substance of the proofs and examination of witnesses, is not complied with, in that the examination is certified separately from the certificate of probate, is immaterial, where both certificates are of one date, and in the same pro ceeding, and the certificate of probate recites that the will has been duly proved.

3. A certificate to the record of probate proceedings which expressly refers to the certificate of probate embraces the certified examination of the attesting witnesses, where the certificate of probate refers to the examination.

4. Where a tenant in common by deed attempts to convey the entire estate, and the grantee enters, his possession is not presumed to be adverse to the co-tenant.

Appeal from superior court, Gates county; Norwood, Judge.

Action by Jane E. Roscoe against the John L. Roper Lumber Company. From a judgment for defendant, plaintiff appeals. Reversed.

Plaintiff offered in evidence the following record from the Book of Wills in the office of the clerk of Gates superior court (page 418 et seq.), as follows (last will and testament of H. E. Roscoe, deceased):

"I, H. E. Roscoe, of the town of Oxford, county of Lafayette, and state of Mississippi, being, of sound mind, body, and understanding, do make and ordain this to be my last will and testament, revoking all other wills by me made. I give and bequeath to my beloved wife, Jane E. Roscoe, all my property, —personal, real, and mixed, —which I now have, or may hereafter acquire by purchase or otherwise. I hereby appoint my wife, Jane E. Roscoe, executrix of my last will, requiring that she make no bond or make any return whatever to the chancery court, but that she shall have entire control, without let or hindrance of the chancery court of Lafayette, and shall take possession of all my property, of whatever kind, and do with it just as she pleases, retaining or disposing of it as may be her pleasure to do. Given under my hand and seal this the thirteenth (13) day of January, one thousand eight hundred and eighty-two (1882). H. E. Roscoe. [Seal.] Witness: Silas Owens, Jr. A. T. Owens.

"State of Mississippi, Lafayette County. In the Chancery Court, in Vacation. Personally appeared before me, John F. Brown, clerk of the chancery court of the county and state aforesaid, Silas Owens, Jr., and A. T. Owens, subscribing witnesses to a certain instrument of writing purporting to be the last will and testament of H. E. Roscoe, late of said county, now deceased, bearing date the 13th day of January, A. D. 1882, who, being first duly sworn, depose and say that said H. E. Roscoe signed, sealed, and executed said instrument and testament in the presence of these deponents on the day of the date thereof; that said testator was then of sound, disposing mind and memory, and more than twenty-one years of age; and that these deponents subscribed said instrument as witnesses thereto at the instance and request and in the presence of said testator, and also in the presence of each other, on the day and year aforesaid. Silas Owens, Jr. A. T. Owens.

"Sworn to and subscribed before me this

[32 S.E. 390]

11th day of March, A. D. 1885. [Seal.] J. F. Brown, Clerk, by A. G. Smith, D. C.

"No. 2, 120. In the Chancery Court of Lafayette County, Mississippi, in Vacation, March 11, 1885. H. E. Roscoe, Deceased, against Jane E. Roscoe, Ex'trx. In the Matter of H. E. Roscoe, Deceased. This day came on to be heard the matter of the last...