In Re Last Will & Testament of Southerland

Supreme Court of North Carolina
In Re Last Will & Testament of Southerland, 124 S.E. 632 (N.C. 1924)
188 N.C. 325; 1924 N.C. LEXIS 62
Adams

In Re Last Will & Testament of Southerland

Opinion of the Court

Adams, J.

The only heirs at law of the alleged testatrix are her two children, E. E. Southerland and Lucy Jolly, the propounders, and her *327 grandchild, Susie Lee, tbe caveator. Susie’s mother, who was a sister of the propounders, intermarried with T. W. Lee on 14 October, 1914, and died on 10 October, 1918. Two days before her mother’s death, Susie Lee, when about nine months of age, while critically ill, was committed by her father to the friendly keeping of H. D. Williams and his wife.

The cause came on for hearing, and the propounders, after offering-evidence tending to establish the paper-writing as Mrs. Southerland’s holograph will, rested their case; whereupon, H. D. Williams, a witness for the caveator, was permitted to rehearse the circumstances under which the child had been received into his home. His testimony included reference to her illness, to that of her mother and Mr. Souther-land, and to the difficulty experienced in procuring the services of a nurse. To this evidence the propounders excepted, chiefly on the ground that it was prejudicial to them and threw no light on the mental condition of the alleged testatrix or the question of undue influence.

The issues relating to mental capacity and undue influence were not answered; and if it be granted that the evidence objected to was calculated to excite in the mind of the jury a sympathetic interest in behalf of the caveator, still it was properly admitted if it was competent for any purpose. The admission of evidence which is competent for some purposes, but not for all, does not constitute reversible error unless at the time it is admitted the appellant request that its purpose be restricted. Rule 21, Supreme Court. It will be noted, the first issue incidentally involved the question whether it was Mrs. Southerland’s purpose practicálly to ignore her grandchild in the disposition of her property. The propounders evidently concluded that such was her purpose, for upon no other theory can the writing be upheld as her will. In controverting this theory it was competent for the caveator to show the relation that existed between her and her grandmother; and as tending to show such relation, evidence of certain circumstances to which the witness testified was both relevant and material. It matters not that a part of the evidence may have been incompetent, for a general exception will not be considered unless all the evidence objected to is incompetent. Dellinger v. Building Co., 187 N. C., 845, 848; Rollins v. Wicker, 154 N. C., 559.

Nor can the exception to Mrs. Williams’ testimony be sustained. What she said was at most merely the recital of a question asked her by Mrs. Jolly, and does not constitute reversible error, particularly in view of the verdict, which omits an -answer to the second and third issues. Technical error, unless prejudicial, is generally held insufficient ground for a new trial. Plyler v. R. R., 185 N. C., 357; Penland v. Barnard, 146 N. C., 379.

*328 Tbe propounders excepted to certain instructions relating to tbe first issue, and to tbe form in wbicb it was submitted, on tbe ground tbat the trial judge imposed upon them tbe burden of establishing the testamentary intent, as well as the formal execution of the paper.

It is not denied that tbe burden was on the propounders to establish the formal execution of the writing (In re Chisman, 175 N. C., 420), but it is insisted that, upon proof of such execution, the animus testandi was to be inferred. This principle obtains where the testamentary character of tbe instrument appears on its face and only a question of construction is presented (Outlaw v. Hurdle, 46 N. C., 150); for when tbe animus testandi is established, tbe character of the instrument is fixed; but when.tbe instrument on its face is equivocal and it is doubtful whether it is intended to operate as a will, a deed, or a gift, parol evidence may be considered. Robertson v. Dunn, 6 N. C., 133; Clayton v. Liverman, 29 N. C., 92; Davis v. King, 89 N. C., 441; Egerton v. Carr, 94 N. C., 648; note to Ferris v. Neville, 89 A. S. R., 488; note to Smith v. Smith, 33 L. R. A., 1018; note to Shaull v. Shaull, 11 A. L. R., 49. See, also, Phifer v. Mullis, 167 N. C., 405; In re Seymour, 184 N. C., 418. In Heaston v. Krieg, 119 A. S. R. (Ind.), 475, it is said: “The animus testandi does not depend upon tbe maker’s realization that the instrument he is executing is a will, but upon his intention to create a revocable disposition of his property, to take effect after his death.”

Tbe paper offered for probate is equivocal. The maker designates several beneficiaries, but names no executor or other person to deliver the gifts. It may fairly be said tbat there is some indication of disposition inter vivos and of testamentary intent; and under these circumstances his Honor properly submitted to tbe jury tbe determination of the maker’s purpose. Tbe burden of showing such intent was, of course, upon the propounders.

The signature, “Mother,” is sufficient if the maker adopted it as her own for the purpose of executing the instrument. Wise v. Short, 181 N. C., 320.

¥e find

No error.

Reference

Full Case Name
In Re Last Will and Testament of Emma Southerland.
Cited By
9 cases
Status
Published