Wilson's Will, In re, 382
| Decision Date | 12 December 1962 |
| Docket Number | No. 382,382 |
| Parties | In the Matter of the WILL of Willie Spain WILSON, Deceased. |
| Court | North Carolina Supreme Court |
Zollicoffer & Zollicoffer, Henderson, for propounder appellees.
Charles F. Blackburn, Henderson, guardian ad litem.
The primary question presented on this appeal is whether or not an interested party may testify as to where the purported will of a testatrix was found after her death.
On direct examination, Frank H. Spain, a beneficiary under the purported will, testified that the paper writing, including the testatrix's signature, was in the handwriting of the testatrix, Willie Spain Wilson; that the paper writing was found in a pigeon hole of the desk that sat in the hall of his home where she had lived for seventeen years prior to her death, and that other valuable papers and effects of the testatrix were found in this same location, including insurance papers, four bank books and two keys to her lock box at the bank.
On cross-examination, Mr. Spain testified that he knew Mrs. Wilson had a will and knew where it was; that he put it there. He further testified that the purported will had been kept in the pigeon hole of the desk with the testatrix's other valuable papers for more than eight years prior to her death.
It is apparent, we think, from the evidence disclosed by the record that the testatrix had access to her valuable papers whenever she desired to have access thereto since her life insurance policies were there, the proceeds of which she referred to in the purported will, and her fire and crop insurance policies. Furthermore, the bank books disclose deposits and withdrawals over a long period of years prior to her death and show a balance in the savings departments of the Citizens Bank of Henderson, North Carolina, and the First National Bank in Henderson, North Carolina, in the name of the testatrix, aggregating more than $12,000.
The caveators contend, however, that the testimony of Frank H. Spain was inadmissible since his knowledge of the existence of the will and its location was known to him prior to the death of the testatrix; that he could not possibly have found the will within the meaning of the statute since he already knew where it was. Therefore, they say the will must be 'found after testator's death.' Hence, the caveators contend that the paper writing which the propounders contend is the last will and testament of Willie Spain Wilson was never found. The caveators further contend that the word 'found,' being the past participle of 'find,' means to discover, and that the word 'discover' means to 'uncover that which was hidden, concealed, or unknown from everyone; to get first sight or knowledge of; to get knowledge of what has existed but has not theretofore been known to the discoverer.' We do not concede that since Frank H. Spain knew his sister had a will and that it had been placed with her valuable papers kept in his desk in the home where she had lived for seventeen years prior to her death, he was disqualified from testifying that after her death he found the purported will among her valuable papers. In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155; In re Westfeldt, 188 N.C. 702, 125 S.E. 531; In re Will of Foy, 193 N.C. 494, 137 S.E. 427; Cox v. Beaufort County Lumber Co., 124 N.C. 78, 32 S.E. 381.
The testimony of Frank H. Spain is further challenged on the ground that any knowledge regarding the purported will and where it was located was obtained as the result of a personal transaction or communication with the testatrix and should have been excluded by virtue of the provisions of G.S. § 8-51.
In light of the testimony adduced in the hearing below, we reject these contentions...
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