Philbrick v. Young , 255 N.C. 737 ( 1961 )

122 S.E.2d 725 (1961) 255 N.C. 737

Jane Virginia Andrews PHILBRICK, Individually and as Administratrix, C. T. A. of the Estate of William J. Andrews, Deceased, and Martha Andrews Wing
v.
Augusta Andrews YOUNG.

No. 455.

Supreme Court of North Carolina.

November 29, 1961.

Armistead J. Maupin, Raleigh, for respondent appellant.

Mordecai, Mills & Parker, Raleigh, for petitioner appellees.

RODMAN, Justice.

The power of a court upon a proper showing to correct its records and supply an inadvertent omission cannot be doubted. G.S. § 2-16, subd. 9; State Trust Co. v. Toms, 244 N.C. 645, 94 S.E.2d 806; State v. Cannon, 244 N.C. 399, 94 S.E.2d 339; Foster v. Woodfin, 65 N.C. 29.

Appellant recognizes the power of the court to correct its records. Her challenge to the judgment is based on the assertion that there is no competent evidence to support the court's findings.

Our statute law as it existed in 1943 (G.S. § 30-1) provided: "Every widow may dissent from her husband's will before the clerk of the superior court of the county in which such will is proved, at any time within six months after the probate. The dissent may be in person, or by attorney authorized in writing, executed by the widow and attested by at least one witness and duly proved. The dissent, whether in person or by attorney, shall be filed as a record of court."

To support their allegations petitioners offered in evidence the court jacket containing the original will to which was attached the proof and order of the clerk dated 20 April 1943 establishing the paper writing as the will of William J. Andrews. In the jacket with the will and probate was a paper writing purportedly signed by the widow. This paper is sufficient in form to comply with the statute permitting a widow to dissent. Petitioners offered will book P, p. 121. There the will, the evidence taken by the clerk to establish it as such, and the order of probate are recorded. Below these the paper purporting to be Mrs. Andrews' dissent is recorded. Page 121 of the will book is devoted exclusively to matters relating to the will of Mr. Andrews.

Clerks of the Superior Court are required by statute to keep books in which wills and the proof thereof must be recorded, G.S. § 2-42, subd. 11. Subsection 19 requires the clerk to keep a cross-index showing the parties interested in the estate of the testator.

While the statute merely requires the filing of the dissent, it is, we think, the duty of the clerk to record the dissent when filed. Here the clerk did so. This recording created the presumption that the instrument was the act of the widow done in the time and manner required by law. Jones v. Saunders, 254 N.C. 644, 119 S.E.2d 789; Freeman v. Morrison, 214 N.C. 240, 199 S.E. 12; Poplin v. Hatley, 170 N.C. 163, 86 S.E. 1028. But petitioners were not content to rely upon the presumption which arose by the recordation of the dissent. They offered the testimony of a court employee. She testified: "I have an independent recollection of a dissent being filed in this estate. * * * I remember that Mrs. Andrews came into the office and I not being able to sign it I took it up to Mr. Mordecai's office and it was completed there. * * * I do not know when it was. It wasn't too long after the Will was put on record, though * * *. Mrs. Andrews signed the dissent. I did not have to sign it. * * * I had to take it up to Mr. Mordecai for his advice as to just what to do with it." Mr. Mordecai, referred to by the witness, was the clerk in 1943.

Mr. Smith, attorney for Mrs. Andrews, testified that Mrs. Andrews acted on his advice in dissenting from the will. She was a creditor of her husband's estate. The debt owing her was secured by mortgages or deeds of trust on certain of his real estate. Other creditors had taken judgments against him and these had been docketed, but they were subsequent to the registration of the mortgage. Mr. Smith testified that he feared a failure to dissent might constitute an election by the widow to take under the will and a waiver of her right as a mortgage creditor, thereby subordinating her rights to the rights of the judgment creditors. This witness was unable to fix the date when the dissent was filed, but he identified a mortgage or deed of trust securing Mrs. Andrews which might be subordinated to the claims of judgment creditors if she did not dissent. This deed of trust, by marginal entry, showed foreclosure and a conveyance of the property there described to the widow on 16 July 1943. The foregoing evidence was sufficient to support the finding that the dissent was genuine and the factual inference that the dissent was filed within six months from the probate of the will.

Petitioner Philbrick testified specifically to the date when the dissent was filed. She said that she went to the office of the clerk to qualify as administratrix c. t. a. and to offer the will for probate. The record shows this was 20 April 1943. Her mother went with her to the office of the clerk. The witness then, over the objection of respondent, testified that she saw her mother on that date file the dissent in the clerk's office. Respondent insists the evidence was incompetent because prohibited by G.S. § 8-51. This witness was not offered for the purpose of proving Mrs. Andrews' execution of the dissent. That fact and the fact of delivery by Mrs. Andrews to the court had been established by other evidence. Mrs. Philbrick's testimony was offered to fix the time when the act was done. It was competent for that purpose. Abernathy v. Skidmore, 190 N.C. 66, 128 S.E. 475; Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863; Wilder v. Medlin, 215 N.C. 542, 2 S.E.2d 549; In re Mann's Will, 192 N.C. 248, 134 S.E. 649; Johnson v. Cameron, 136 N.C. 243, 48 S.E. 640.

Affirmed.