Opinion
(June Term, 1841.)
1. On the trial of an issue devisavit vel non, where the will is propounded by two legatees, one of whom is a colored woman and the other a white woman, and the caveators are colored persons, the caveators may prove by other colored persons the declarations of the colored woman, one of the parties propounding, in relation to the subject-matter of the issue.
2. Where it was proved by one of the only two subscribing witnesses to a will, offered as a will of real estate, that he was requested by the testator to prepare his will according to his instructions, and he did so, and signed his name as a witness before the testator signed, but not in his presence, and then read the will to the testator, and told him he had signed as a witness, and the testator approved and executed it, and the other witness then signed in presence of the testator: Held, that this was not a valid execution of a will to pass real estate, the statute requiring both the witnesses to sign in the presence of the testator.
3. A will was offered for probate in the county court, a caveat entered by the defendants, and on the issue being found in favor of the will, both as to real and personal estate, the defendants appealed. On the trial in the Superior Court the jury found it to be a good will for personal but not for real estate: Held, that the plaintiffs had a right to recover from the defendants their costs both in the county and Superior courts. If the defendants had appealed only from so much of the judgment of the county court as related to the real estate, then the costs of the Superior Court would have followed the judgment of that Court.
APPEAL from Dick, J., at Spring Term, 1841, of CUMBERLAND.
W. H. Haywood and Strange for plaintiffs.
No counsel for defendants.
The issue tried in the case was an issue of devisavit vel non, which came up from the county court upon the appeal of the caveators, the jury below having found that the paper-writing propounded was the last will and testament of George Ragland, deceased, sufficient in law to pass both real and personal estate, and judgment having been rendered accordingly. On the trial in the Superior Court the caveators contested the validity of the will, both as to real and personal (562) estate, upon the ground that, at the making of the will, the supposed testator was non compos mentis. In support of this proposition two witnesses were offered by the caveators, who were objected to by the plaintiffs on the ground that they were persons of color, by whom the defendants stated that they expected to prove admissions of Hannah Ragland, one of the plaintiffs, that the testator was of unsound mind at the execution of the will. It was admitted by the plaintiffs that the testator was a free man of color; that Hannah Ragland, his widow, and one of the plaintiffs, was a free woman of color, and that both the defendants were free persons of color; but it was equally certain that Rachel Ann Arey was of pure white blood, and this was not denied by the defendants. Whereupon his Honor rejected the testimony. The defendants then insisted that Rachel Ann Arey being an infant within 21 years of age, which was not denied, was improperly a party to the record, and, as she did not appear by guardian or next friend, her appearance was a nullity; and, therefore, moved that her name be stricken from the record. His Honor replied that, however he might have disposed of the motion had it been made at the proper time, he considered it was now out of time, the cause having been put to the jury in its then condition, and he would reject the motion. One of the persons introduced by the plaintiffs as one of the subscribing witnesses to the will (there being but two subscribing witnesses) testified that he was much in the confidence of the testator; that on the evening before the paper-writing was signed by the testator, he, the witness, was sent for by the testator, and, upon visiting him, found him in bed, and was informed by him that he had been quite sick, but that he had taken medicine, which had acted well, and he was now much better, and believed himself recovering; but in case of accident, he desired to make his will, and wished him (the witness) to write it for him and become one of the subscribing witnesses, and he wished a Mr. Southerland to be the other; that he (the witness) lived on the next lot to the testator, and Mr. Southerland was also a near neighbor; that the witness took memorandums of the wishes of the testator, which he took home with him, and (563) there prepared the will; that after writing the will, he wrote the note of attestation in continuation, viz.: "Signed, sealed, published, and declared to be my last will and testament, this 25 September, 1835, in presence of," and then signed his name as a subscribing witness; that on the following morning, when he took the will over to the testator, he, the witness, informed him that he had written the will and signed as a subscribing witness, according to his request, and read over to him the whole will, with the note of attestation and his own (the witness's) name as subscribing witness; that the will was read over to the testator three times, and he approved its contents; that the testator had the will in his own hands and examined it, and although he was not a scholar, could not write, and could read very little, if at all, he was yet a man of business, and conversant with business papers, and understood well the ordinary forms of executing deeds and other papers, and could tell when one was signed by a subscribing witness; that the testator then proceeded to sign the paper in his presence and that of the other subscribing witness, and signed it with a perfect knowledge and understanding that he (the witness) had previously signed it as a subscribing witness; that the witness saw the testator sign the paper, and that it was immediately subscribed, at the request and in the presence of the testator, by the other subscribing witness; and that the witness did not renew his signature, but the will was left with the testator, who understood and believed that his will was fully executed. His Honor thereupon charged the jury that the paper-writing, under the circumstances of the execution deposed to by the subscribing witness, was not in law a will sufficient to pass real estate; but whether it was sufficient in law to pass personal estate depended upon whether or not they should be of opinion, from the evidence, that the supposed testator was, at the time of signing the paper, of sound and disposing mind and memory. Under this charge the jury found the paper-writing to be the last will and testament of George Ragland, sufficient to pass personal property, but not sufficient to pass real estate. A motion was thereupon made by the plaintiffs that they recover their costs against the (564) defendants in both courts, and for judgment against the sureties to the appeal bond; and on the part of the defendants it was moved that the defendants have judgment for their costs in both courts. Whereupon it was adjudged by the court that the plaintiffs do recover their costs in the county court, and that the defendants do recover their costs in the Superior Court; but no judgment was rendered against the sureties to the appeal. The plaintiffs then obtained a rule upon the defendants to show cause why a new trial should not be granted because of error in the charge of the court upon the point of the due execution of the will as to real estate; and the defendants obtained a rule upon the plaintiffs to show cause why a new trial should not be granted for error in the court in rejecting the testimony of the colored witnesses, and in refusing to strike out the name of Rachel Ann Arey in the cause. Both rules were discharged, and both parties, being dissatisfied therewith and with the judgment as to costs, prayed an appeal to the Supreme Court, which was granted.
First. Were the two colored persons who were offered by the defendants to prove the admissions of Hannah Ragland competent witnesses? We are of the opinion that they were competent. In King v. Inhabitants of Hardwick, 11 East, 589, it was decided that when a suit is pending against a great number of persons who have a common interest in the decision, a declaration made by one of the persons concerning a material fact within his own knowledge is evidence against him and all the other parties with him in the suit; because, as he is not liable to be called upon to give evidence upon oath of the fact, being a party to the suit, his declaration of it must be evidence for the opposite party. In McRainy v. Clark, 4 N.C. 698, it was held that where the executors and devisees are regularly made parties plaintiffs to an issue of devisavit vel non, the declarations of some of them were to be (565) received. The act of Assembly, 1 Rev. St., ch. 31, sec. 81, disables people of color, within certain degrees, from being witnesses, except against each other. The defendants are people of color; and the plaintiff Ragland, whose admissions are sought to be given in evidence, is also a woman of color. We think that the witnesses were competent to give evidence of her admissions and declarations. It comes within the exception in the statute; and the circumstances that Arey, a coplaintiff, might be incidentally affected by such evidence, was not sufficient to exclude them. The evidence should have been received, and the jury would judge what it was worth.
Second. The act of Assembly, Rev. St., ch. 122, sec. 1, declares that no will or testament shall be good or sufficient, in law or equity, to convey or give any estate in lands, etc., unless such last will shall be subscribed in the presence of the testator by two witnesses at least. This will was not subscribed by two witnesses in the presence of the testator. Much argument has been urged upon us by the plaintiffs' counsel, to bring this case within the meaning of the act; but we think it was the meaning of the Legislature that the heirs at law should not be disinherited but by a strict compliance with the words of the act, and that the door to the fraud should be completely shut. The charge of the judge was therefore right on this branch of the case.
Third. In all actions whatever the party in whose favor judgment shall be given shall be entitled to full costs, unless otherwise directed by statute. Rev. St., ch. 31, sec. 79. The plaintiffs, having prevailed upon the issue in the Superior Court, although to a less extent than they had in the county court, were nevertheless entitled to full costs. If the defendants had appealed from so much of the judgment in the county court as related to the due execution of the will as a will of lands, and permitted it to have been proved as the personal estate, then the costs in the Superior Court would have followed the judgment in that court.
PER CURIAM. New trial.
Cited: In re Cox, 46 N.C. 324; In re Pope, 139 N.C. 486.
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