In Re the Will of Crawford , 246 N.C. 322 ( 1957 )

98 S.E.2d 29 (1957) 246 N.C. 322

In re Ellen J. CRAWFORD'S WILL.

No. 25.

Supreme Court of North Carolina.

May 22, 1957.

Paul J. Story, Marion, for caveators, appellants.

Proctor & Dameron, by E. P. Dameron, Marion, George Pennell, Asheville, for propounder, appellee.

HIGGINS, Justice.

Upon the trial the propounder, over objection, offered in evidence the probate proceeding before the clerk, including the will. There is no question but that the probate of a will in common form before the clerk is inadmissible as evidence on an issue of devisavit vel non raised by a caveat. In re Will of Etheridge, 231 N.C. 502, 57 S.E.2d 768; Wells v. Odum, 205 N.C. 110, 170 S.E. 145. Probate in common form is ex parte. Caveators are not before the court and hence not bound by the proceeding. In re Will of Chisman, 175 N.C. 420, 95 S.E. 769. "It is well settled that the probate of a will in common form is incompetent as evidence of its validity on an issue of devisavit vel non, raised by a caveat filed to said will." In re Will of Williams, 215 N.C. 259, 1 S.E.2d 857, 863.

The caveat filed in this case contains the following:

"The caveators (naming them) respectfully show unto the court:

"2. That on the 23rd day of September 1955, one Nancy Ellen Stoner Pumphrey presented to the Court a paper writing purporting to be the Last Will and Testament of the said Ellen J. Crawford, the same being in words and figures as set out in the paper writing hereto attached, marked Exhibit A, and asked to be taken as a part hereof. (Emphasis added.)

"3. That the said Nancy Ellen Stoner Pumphrey alleged that the said paper writing was the Last Will and Testament of the said Ellen J. Crawford, deceased, and procured the same to be admitted to probate in common form as such Last Will and Testament, copy of the order of probate being attached to Exhibit A, and being a part thereof." (Emphasis added.)

The caveators thus identified and placed before the court the record of probate and the will itself. The identity and content of the documents became a judicial admission on the part of the caveators. Having asked the court to take notice of them, the caveators cannot be heard to complain that they were placed before the jury. "The reception of incompetent evidence to prove an admitted fact is not cause for disturbing the result of a trial." Rudd v. American Fidelity & Casualty Co., 202 N. C. 779, 164 S.E. 345, 347; A. J. Higgins Lumber & Export Co. v. Elizabeth City, 181 N.C. 442, 107 S.E. 449; Cleveland-Akron Bag Co. v. A. F. Messick Grocery Co., 171 N.C. 764, 88 S.E. 512; Fisher v. Brown, 135 N.C. 198, 47 S.E. 398; Brown v. McKee, 108 N.C. 387, 13 S.E. 8; see also Redd v. Mecklenburg Nurseries, 241 N.C. 385, 85 S.E.2d 311; McCorkle v. Beatty, 226 N.C. 338, 38 S.E.2d 102; Allen v. Allen, 213 N.C. 264, 195 S.E. 801.

The appellants' assignments of error based on exceptions to the court's review of the evidence and statement of contentions cannot be sustained. Equal stress was given to the evidence and the contentions of the parties. They had opportunity to request correction, amplification, or additional instruction if deemed desirable. Failure to make the request waived the right to object. Ellis v. Wellons, 224 N.C. 269, 29 S.E.2d 884; Davis v. Keen, 142 N.C. 496, 55 S.E. 359; Simmons & Ward v. Davenport, 140 N.C. 407, 53 S.E. 225.

By assignment of error No. 6 the appellants challenge the following definition in the court's charge to the jury: "A caveat is a caution entered in the court of probate to stop probate from being granted without the knowledge of the parties at interest." Black's Law Dictionary, 4th ed., defines caveat: "Let him beware. This process may be used in the probate courts to prevent (temporarily or provisionally) the probate of a will." Whether the court's definition is entirely accurate is immaterial. The caveat challenged the validity of the will and placed upon the propounder the burden of proving its formal execution in conformity with statutory requirements. Thus arose the issue devisavit vel non. That is, did the testatrix devise, and is the paper offered her will?

The right to bequeath and to devise property by will is statutory. In order to be valid a will must be attested by at least two competent witnesses, G.S. § 31-3.3; or it must be entirely in the handwriting of the testator and found among his valuable papers, or placed in the possession of some person or depository for safekeeping. G.S. § 31-3.4. The propounder offered as witnesses Barbara Jean Harris and Mrs. Eva Lewis who testified to the formal execution of the will and that they, in the presence of the testatrix and at her request, signed as the subscribing witnesses. They also testified that the will, in its entirety, is in the handwriting of Ellen J. Crawford and that it was delivered to Mrs. Lewis by the testatrix three days before her death with instructions that it be delivered to Mrs. Pumphrey; and that these instructions were carried out.

The evidence offered by the propounder was sufficient to go to the jury and to sustain the will both as an attested and as a holograph will. Mrs. Pumphrey, though a beneficiary under the will, was not disqualified to testify as to the handwriting of the testatrix. G.S. § 31-10(b); In re Westfeldt's Will, 188 N.C. 702, 125 S.E. 531; Cornelius v. Brawley, 109 N.C. 542, 14 S.E. 78; Hampton v. Hardin, 88 N. C. 592.

The appellants urgently contend, however, that the paper writing offered for probate and which bears date April 26, 1955, was revoked by a subsequent will. In support, they offered as a witness Mrs. R. I. Corbett who testified that on August 18, 1955, the testatrix called the witness to the former's home and the following took place: "When I got there Miss Ellen told me that she had been working on her will and that she had been dissatisfied with some things and that she had her will ready and she wanted me to witness it and go over it with her. She had a paper with her then that she said was her will. Her name appeared in it. * * * It was written in Miss Ellen's handwriting. * * * The will was written on a long white paper, written on one page, * * * The original paper writing which you now show me * * * is not the paper writing which I witnessed on August 18, 1955." The witness remembered that Miss Ellen had misspelled a word and had drawn a line through it, and misspelled it again and drew another line through it. She remembered also that in the writing she witnessed, an article of furniture was given to Laura Ellen Lowe; and that request was made that the Crawford place be bought by some member of the family. In the will offered for probate Laura Ellen Carson Lowe was given, among other things, "Mama's rocking chair"; and further provided: "It is my wish that the home place is sold to no one outside the C. W. Crawford family."

On cross-examination, the witness testified: "I have read the paper twice that has been offered in evidence here. What she told me about it was substantially the same as what is in this paper."

What became of the paper witnessed by Mrs. Corbett does not appear. There is no evidence that any other attesting witness signed it. While the evidence of Mrs. Corbett indicated the document was in the handwriting of Ellen J. Crawford, there was no evidence it was found among her valuable papers, or that it was "lodged" by the maker with some person or depository for safekeeping. Therefore, evidence is lacking that the paper writing witnessed by Mrs. Corbett was executed according to the formalities necessary to make it a valid will. It was, therefore, ineffective as a revocatory instrument. "A written will, or any part thereof, may be revoked only (1) by a subsequent written will or codicil or other revocatory writing executed in the manner provided herein for the execution of written wills, or (2) by being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in his presence and by his direction." G.S. § 31-5.1. Evidence of revocation, therefore, was insufficient to justify the submission of that phase of the case to the jury. In re Will of Evans, 223 N.C. 206, 25 S.E. 2d 556. The caveators had the benefit of having the question of revocation considered by the jury, notwithstanding there was no evidence to support the contention. The paper writing witnessed by Mrs. Corbett contained no words of revocation. Its provisions were not in conflict with the will offered for probate. In re Wolfe's Will, 185 N.C. 563, 117 S.E. 804; In re Venable's Will, 127 N.C. 344, 37 S.E. 465. As she was leaving for the hospital three days before her death, the testatrix placed the will in the hands of Mrs. Lewis for safekeeping. This act was wholly inconsistent with any idea of revocation.

The court instructed the jury fully with respect to the principles of law applicable to the evidence offered and properly placed the burden of proof. "The charge is sufficient if, when read contextually, it clearly appears that the law of the case was presented to the jury in such manner as to leave no reasonable cause to believe that it was misled or misinformed in respect thereto." Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898, 902; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356. We have examined carefully all assignments of error brought forward and discussed in the excellent brief filed by the caveators. The record, however, discloses

No error.