Opinion
(January Term, 1867.)
1. That a paper-writing, propounded as a will, has upon it an attestation clause unwitnessed, will not prevent its being established as a holograph.
2. The placing of a holograph in a trunk, left for safe keeping with a friend, and having in it the larger part of the valuable papers and money of the deceased, will satisfy the requirements of the statute upon the point of deposit.
3. Where a deposition was found among the papers, with a commission unattached, and an envelope which appeared to have been sealed up and afterwards broken open: Held, that this was sufficient evidence to justify the clerk in finding that the deposition had been taken under such commission, and had been returned to him sealed up by the commissioner, and therefore that the clerk had done right in passing upon, and allowing such deposition to be read.
( Harrison v. Burgess, 4 Hawks, 384; Brown v. Beaver, 3 Jon., 516; Simms v. Simms, 5 Ire., 684, and Little v. Lockman, 4 Jon., 494, cited and approved.)
CAVEAT, tried before his Honor, Barnes, J., at Fall Term, 1866, of the Superior Court of CARTERET.
Manly Haughton for propounder.
Green Perry for caveators.
The will in question had an attestation clause, but no subscribing witness; and it was duly proved to be in the handwriting of the deceased, one W. S. Ward. In regard to the place of deposit, it was shown that in the fall of 1862 the deceased was in the habit of spending his nights with one John W. Pelletier, and on one occasion brought with him a box and trunk, and desired Pelletier to take care of them, as they contained valuable papers. Shortly afterwards he ceased living with Pelletier, but left the box and trunk with him, retaining the keys. In 1865 he returned to Pelletier's, but, a month before his death he went to his sister's saying he had a presentiment that he should die. On going away he asked Pelletier to keep charge of his papers, saying that his will was among them signed by him, but not witnessed, but that whether witnessed or not it was nevertheless his will; that his handwriting was well known and could be proved. He also said to Mrs. Hill, his sister, that he had carried all his important papers to Pelletier's for (123) safe-keeping , and his will was in his trunk there, repeating what he said above about its being not witnessed, but nevertheless his will.
The conversation with his sister was proved by her deposition, the reading of which was objected to because the commission, although among the papers, was not attached to the deposition; also because the deposition had not been returned to the clerk under seal. It appeared that a commission had regularly issued to take the deposition, and the clerk produced an envelope directed to him as clerk, in which he thought that the commission and depositions had been returned to him, and which had the appearance of having been sealed. The clerk had not previously passed upon the depositions, but was directed by the court to do so then. Having done this and endorsed his allowance thereof, the caveators appealed to the court, who permitted the deposition to be read.
After Ward's death the paper-writing now propounded was found in the trunk. Valuable papers and money were also found in both the trunk and box, some $75, in "greenbacks," in the former, and some $20 or $30, in specie, in the latter.
His Honor charged the jury that if the paper was found among the greater portion of the valuable papers of the deceased, the requirement of the statute in that respect was complied with, although a portion of his valuable papers and money may have been in another place. Also that when one writes a will and prepares an attestation clause for it, there is a presumption that he intended to have it witnessed, but such presumption might be removed by showing affirmatively that he had executed it in one of the other ways provided by law; that if the jury believed from all the evidence that the paper-writing was placed by the deceased among the greater part of his valuables, papers and effects, or was lodged by him in the hands of another person for (124) safe keeping, with the intention that it should be his last will and testament, then it would be their duty to find the affirmative of the issue, provided that all the other requirements of the statute had also been proved to their satisfaction.
Verdict for the propounder; rule for a new trial; rule discharged, and appeal.
The objections to the validity of the script propounded for probate as the last will and testament of William S. Ward were of two kinds: first, that the deceased intended to make and publish it as an attested, and not as a holograph will, and that therefore it was never so completed as to operate as a will; secondly, that if it were a holograph paper it was not found among the valuable papers and effects "of the deceased, nor was it lodged in the hands of some person for safe keeping."
1. The first objection is fully answered by the two cases of Harrison v. Burgess, 1 Hawks, 384, and Brown v. Beaver, 3 Jon., 516. In the former it was held that the fact of there being the signature of one subscribing witness to a will of land did not prevent it from being proved a holograph will; and in the latter, that it was no objection to the probate of a script as a holograph will, that it had one subscribing witness, and was intended by the decedent to be proved by subscribing witnesses, which intent was frustrated by the fact that the second attesting witness, was incompetent. The declaration made by the decedent in the present case, that he wished to obtain the subscription of witnesses to his will, though strengthened by an attestation clause, cannot be of more avail against its validity than was the actual attestation in the cases (125) referred to. Besides, it was entirely proper in the judge to leave it to the jury to determine whether, from all the circumstances, they believed that the paper-writing was deposited by the deceased among his valuable papers with the intention that it should be his will. Simms v. Simms, 5 Ire., 684.
2. The second objection is equally unavailing. According to the evidence the trunk in which the script was found had papers and effects of value and of greater value than those in the box; and this trunk was legally in the possession of the decedent, though for the time deposited at the house of another person. The deceased did not deposit the script "in the hands" of that person for safe keeping, but he did place it among his own valuable papers and effects, where it was found after his death. The case of Little v. Lockman, 4 Jon., 494, in stating what is not a proper depository for a holograph paper, shows clearly that the one established by the testimony in the present case was just such a place as was in the contemplation of the statute. See Rev. Code, ch. 119, sec. 1.
The objection made to the admissibility of Mrs. Hill's deposition cannot be sustained. There was sufficient testimony to justify the clerk in finding that there was a commission for taking the deposition, and that it had been returned to the court properly sealed up by the commissioner who took it. The clerk did right therefore in passing upon it and allowing it to be read. See Rev. Code, ch. 31, sec. 63. No error being found in the judgment of the Superior Court, it must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Hughes v. Smith, 64 N.C. 494; In re Sheppard's Will, 128 N.C. 55; In re Westfeldt, 188 N.C. 709.
(126)