In Re the Will of Gatling , 234 N.C. 561 ( 1951 )

68 S.E.2d 301 (1951) 234 N.C. 561

In re GATLING'S WILL.

No. 455.

Supreme Court of North Carolina.

December 12, 1951.

I. W. Farmer, Allen Langston, and Brassfield & Maupin, all of Raleigh, for propounder appellant.

John W. Hinsdale, Raleigh, Frank S. Katzenbach III, Trenton, N. J., for caveator appellee.

WINBORNE, Justice.

The assignments of error presented by appellant on this appeal are based in the main upon exceptions, I, to the testimony of the handwriting expert introduced by the caveator, and, II, to portions of the charge. These will be considered in this order.

I. Propounder in his brief filed in this Court states that all of his exceptions to the testimony of the handwriting expert come down to these points:

"1. His insistence upon personifying the writer as ``Mr. Gatling', describing his habits, and stating what ``Mr. Gatling" or ``the writer' would do or would not do.

"2. He insisted upon repeated graphic demonstrations of just how ``Mr. Gatling' did or did not form certain letters or combinations of letters.

"3. In spite of repeated objections by counsel, and frequent admonitions by the court, his discourse throughout was simply an argument delivered from the witness chair rather than the testimony of a witness."

In this connection it is provided by statute G.S. § 8-40 that "In all trials in this state, when it may otherwise be competent and relevant to compare handwritings, a comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute: Provided, this shall not apply to actions pending on March 5, 1913."

This statute was enacted by the General Assembly of 1913, and ratified 5 March, 1913, and later became Section 1784 of Consolidated Statutes of North Carolina 1919. It has been referred to in decisions of this Court, and applied in others. See Boyd v. Leatherwood, 165 N.C. 614, 81 S.E. 1025; Fourth Nat. Bank v. McArthur, 168 N.C. 48, 84 S.E. 39; Newton v. Newton, 182 N.C. 54, 108 S.E. 336; Gooding v. Pope, 194 N.C. 403, 140 S.E. 21. See also Stansbury's North Carolina Evidence, Sec. 198 et seq.

While prior to the enactment of this statute it seems to have been settled law in North Carolina that an expert witness in the Presence of the jury might be allowed to compare a disputed paper with other papers in the case, whose genuineness was not denied, and that the jury must pass upon its genuineness upon the testimony of witnesses, and that no comparison by the jury was permitted. See Outlaw v. Hurdle, 46 N.C. 150, Tunstall v. Cobb, 109 N.C. 316, 14 S.E. 28, and cases cited.

But after the enactment of this statute, this Court in Newton v. Newton, supra, recognized "an unequivocal declaration of change in the rule obtaining theretofore". And in the opinion it is said: "As we understand the statute, the admission of testimony as to the genuineness of a writing by comparison of handwriting is now on the same basis as the declarations of agents. The court determines whether there is prima facie evidence of agency or of the genuineness of writing admitted as a basis of comparison, and then the testimony of the witnesses, and the writings (in the plural) themselves are submitted to the jury."

To like effect is the holding in Gooding v. Pope, supra. And in the Gooding case the use of a magnifying glass, with permission of the court, is recognized.

Moreover, this Court in the case State v. Young, 210 N.C. 452, 187 S.E. 561, 562, held that the trial court erred in excluding the testimony of a handwriting expert in giving his reasons for his opinion that a certain signature was not genuine. And Schenck, J., wrote for the Court: "Our holding is based upon the fact that the conclusion of a handwriting expert as to the authenticity or nonauthenticity of a signature, standing alone, might be of little or no probative force, but if his conclusion be supported by cogent reasons, it would be strengthened and its value as evidence correspondingly enhanced. When the reasons of the witness are given, the jury are afforded a better opportunity to determine the soundness of his conclusion."

Applying these principles to the situation in hand of which appellant complains, it must be borne in mind: That the body of the will, admittedly in the handwriting of Bart M. Gatling, was used as the standard of his handwriting; that the jurors had before them photographic copies of the will, in natural size; and that the witness was undertaking in his testimony to point out to the jury, as reasons for his opinion in respect of the interlineation in dispute, characteristic formation of certain letters individually and in word combination, peculiar to the handwriting of Bart M. Gatling, as found in the standard handwriting, and then to compare them with the same letters, individually and in word combination, as found in the interlineation. For instance, in comparing the two, and referring to the former, the witness said, without objection, "You'll observe that Mr. Gatling would make his ``n' in a form that if you were to lift it from the context, the ``n' in ``and', you would have a form that approximates the letter ``u' that is the handwriting of Mr. Gatling's, and that is true of the two ``ands' to which I have referred * * *." Thus it seems clear that the witness was merely using a short-hand method of referring to the letter as it appeared in the standard handwriting. Hence, after careful reading of the testimony of the witness, and the rulings of the trial judge, we conclude that the witness was kept within the bounds of expert testimony, and that no prejudicial error is made to appear.

II. As to the assignments of error based upon exceptions to portions of the charge, it is well to bear in mind the theory upon which the case was tried in Superior Court. In this connection, let it be noted: (1) That the wording of the interlineation in Item 5 materially alters the effect of Item 5 as it appears without the interlineation. (2) That as is seen from the charge, as set out in the record, the court stated the contentions of the parties as follows: "Now, as to the interlineation which is found on the second page of propounder's Exhibit A the words ``and John Gatling one lot at least to each', there is a serious controversy between the caveator and the propounder * * * it being contended by the caveator that * * * the interlineation is not in the handwriting of the testator * * * On the other hand, the propounder contends that the interlineation or alteration is in the handwriting of the testator Bart M. Gatling, deceased, and that after making it he placed it in an envelope and wrote on the outside of it ``My will' and signed his name ``Bart M. Gatling'." (3) That the propounder bases one of his prayers for instruction on this contention. And (4) that there is evidence tending to support same, and there seems to be none to the contrary.

The court after stating the contentions of the parties as above shown, proceeded to charge the jury as follows: "Now, we have a testamentary law which prescribes how alterations in a will shall be made and executed in order to be valid; the pertinent portion of that statute is as follows: `` * * or unless the same be altered or revoked by some other will or codicil in writing, or other writing of the testator, all of which shall be in the handwriting of the testator, and his name subscribed thereto or inserted therein and lodged by him with some person for safekeeping or left by him in some secure place or among his valuable papers and effects, every part of which will or codicil or other writing shall be proved to be in the handwriting of the testator by three witnesses at least'. (So that in order for this interlineation or alteration to be a valid part of the last will and testament of Bart M. Gatling, deceased, it would be necessary for the propounder to show by the greater weight of the evidence that the questioned interlineation or alteration was entirely in the handwriting of the testator Bart M. Gatling and that his name was subscribed thereto or inserted therein), and that it was found among his valuable papers and effects and the handwriting would have to be proved by three witnesses at least." Exception is taken to the portion in parenthesis.

"The burden of proof is on the propounder to satisfy the jury by the greater weight of the evidence that the interlineation or alteration in question here was executed in that manner and that if he has failed so to do then such alteration or interlineation would not be any part of the will of the testator; but if he has so satisfied you by the greater wright of the evidence then such alteration or interlineation would become a part of the last will and testament of Bart M. Gatling, deceased, and you would then answer the first issue Yes; if he has failed so to do you would answer it No.

"Now, what is required in the way of the execution of this alteration or interlineation in order to make it valid as applied to the evidence in this case? That is a crucial question, as to that I charge you that this is the law as applied to the evidence in this case: That if the testator Bart M. Gatling wrote his will in his own handwriting, subscribed his name thereto, and subsequently took it and in his own handwriting wrote the words of the interlineation or alteration, to wit, ``and John Gatling one lot at least to each', that the same is entirely in his handwriting, and after writing it with his own hand he took it and placed it in an envelope and in his own handwriting wrote the words ``My will' and signed his name ``Bart M. Gatling', and placed the envelope with the altered writing in it among his valuable papers and effects, and it was found there after his death, then the requirements of the law would have been met with regard to the execution of the alteration.

"But, on the other hand, if the words of the interlineation or alteration in question here were not in his own handwriting, that is, the handwriting of the testator, then those words would not be any part of his will; (or, if they are in his handwriting, unless after making such alteration or interlineation in his own handwriting he placed the altered writing in the envelope, Propounder's Exhibit B, and wrote on the back thereof the words, ``My will Bart M. Gatling', then it would not be a part of his will)." Propounder excepts to foregoing portion of charge in parentheses.

In connection with the above charge the statute G.S. § 31-3 pertaining to formal execution of holograph wills is as follows: "No last will or testament shall be good or sufficient, in law, to convey or give any estate, real or personal * * * unless such last will and testament be found among the valuable papers and effects of and deceased person, or shall have been lodged in the hands of any person for safekeeping, and the same shall be in the handwriting of such deceased person, with his name subscribed thereto or inserted in some part of such will; and if such handwriting shall be proved by three credible witnesses, who verily believe such will and every part thereof is in the handwriting of the person whose will it appears to be, then such will shall be sufficient to give and convey real and personal estate."

This statute has been pertinently applied in the case of Alexander v. Johnston, 171 N.C. 468, 88 S.E. 785, 786. There two papers were offered for probate as the will of Julia W. Johnston. One of these papers was an envelope on which was written the words "Julia W. Johnston Will", and the other was a paper found on the inside of the envelope and was unsigned. The propounders offered evidence tending to prove that the words "julia W. Johnston Will" endorsed on the envelope and the whole of the paper inclosed therein were in the handwriting of Julia W. Johnston, the testatrix; that the papers were found after her death among her valuable papers, and that she had stated prior to her death that she had made her will, and told where it could be found, which is the place where it was found—and when found the envelope was lightly sealed. The propounders contended that the envelope and the paper on the inside constituted the will of Julia W. Johnston and should be admitted to probate.

There this Court held that "The right to dispose of property by will is statutory, and can only be exercised by following the requirements of the statute"; that "These requirements prescribed by the legislative department for the execution of a will are essential and cannot be disregarded"; that "All of these provisions of the statute have admittedly been followed in the present case, unless there has been a failure to subscribe or insert the name of the testator in the paper offered for probate". The Court, answering the question "Has there been such failure, and what is the meaning of the language to subscribe or insert the name of the testator?", and after reviewing the authorities, held that the evidence offered was sufficient in this respect to establish the writing as her holograph will. See also In re Will of Williams, 234 N.C. 228, 66 S.E.2d 902, and cases cited, as to the signing of a will with witnesses.

Now the statute pertaining to revocation of wills in this State, G.S. § 31-5, in so far as pertinent to case in hand, reads as follows: "No will or testament in writing, or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing * * * but all wills or testaments shall remain and continue in force * * * unless the same be altered or revoked by some other will or codicil in writing, or other writing of the testator, all of which shall be in the handwriting of the testator, and his name subscribed thereto or inserted therein, and lodged by him with some person for safekeeping, or left by him in some secure place, or among his valuable papers and effects, every part of which will or codicil or other writing shall be proved to be in the handwriting of the testator, by three witnesses at least * *."

It will be observed that the court in charging the jury read the latter part of this statute. And it may also be observed that the provisions in this statute for the execution of a codicil to a holograph will are substantially the same as those in G.S. § 31-3 for the formal execution of such will.

Moreover, in the case of In re Will of Watson, 213 N.C. 309, 195 S.E. 772, 774, this Court interpreting the statute G.S. § 31-5, last above quoted, then C.S. 4135, held in effect that a revocation of a will offered for probate should be brought within a method of revocation or cancellation provided by the statute, and that "A written will duly and truly prepared and executed cannot be revoked or canceled by verbal declarations".

Appellant speaking to the assignment of error covered by the exception to the charge as above shown, concedes here that the right to make a will is not an inherent right, and depends entirely upon legislative authorization, and that the statutory requirements are mandatory and not directory. But he contends that the construction of the statute should not be so rigid and binding as to defeat its clearly expressed purpose,—that it must be construed and enforced strictly, but at the same time reasonably.

However, in the light of the requirements of the statutes, as interpreted by the Court, applied to the evidence, on the theory on which the case in hand was tried in Superior Court, we hold that the charge as given is correct. The exceptions are not sustained.

And for like reasons the requests for instruction, which the court declined to give, were properly refused.

Other exceptions have been considered, and fail to show error.

Hence in the judgment below we find no error.