{
  "id": 8651179,
  "name": "In the matter of the Probate of the Will of REBECCA ANNIE HAYGOOD",
  "name_abbreviation": "In re the Probate of the Will of Haygood",
  "decision_date": "1888-09",
  "docket_number": "",
  "first_page": "574",
  "last_page": "578",
  "citations": [
    {
      "type": "official",
      "cite": "101 N.C. 574"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "3 Jones, 14",
      "category": "reporters:state",
      "reporter": "Jones",
      "case_ids": [
        2086801
      ],
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        "/nc/48/0014-01"
      ]
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  "last_updated": "2023-07-14T16:51:11.114152+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "In the matter of the Probate of the Will of REBECCA ANNIE HAYGOOD."
    ],
    "opinions": [
      {
        "text": "Merrimon, J.\n(after stating the case.) The statute (The Code, \u00a7 2148) prescribes how wills shall be admitted to probate, and as to nuncupative wills it provides, among other things, as follows: \u201c No nuncupative will shall be proved by the witnesses after six months from the making thereof, unless it was put in writing within ten days from such making, nor shall it be proved till citation has been first issued pr publication been made for six weeks in some newspaper published in the State to call in the widow and next of kin to contest such will, if they think proper.\u201d It seems to us that a just interpretation of this provision is, that if such will shall be put in writing within ten days next after it was made, it may be proved by the witnesses thereof either before or after the lapse of six months next after the making thereof, because the will being in writing with the sanction of the witnesses, their recollection as to what it was is helped and strengthened thereby, and they could the better be trusted to testify as to the making of the same, and what it was in-its detail, at any time within a reasonable period. The putting of the will in writing is intended to serve such purpose. But if it is not so put in writing, it shall not be proved by the witnesses after the lapse of that time; that is, the proof of the witnesses must be taken within that period \u2014 their recollection, unaided by such writing, shall not be trusted for a longer period than six months \u2014 they shall cease to be witnesses, certainly to make the first proof, if not examined within that time.\nThe will, as proved by the tvitnesses, shall not be deemed proved and admitted to probate \u201c till a 'citation has first been issued or publication made for six weeks in some newspaper published in the State to call in the widow and next of kin to contest such will, if they think proper.\u201d It will be observed that it is not required that the will shall not be proved by the witnesses until the citation and notice provided for shall be made, but it shall not be proved \u2014 that is, proved in the sense of admitting it to probate at once \u2014 until citation shall be made, the purpose being to give the widow and next of kin opportunity to contest the will \u2014 the proof thereof by the witnesses thereof \u2014 if they shall see fit to do so. If this view is not correct, and if the witnesses of the will cannot be examined until after the citation shall be made, then it might turn out that the will could not be proven, although the propounder had taken steps long before the lapse of six months to prove it, because the citation could not be properly made, and thus the purpose of the statute w'ould, in a measure, be defeated.\nIndeed, in case of a caveat of the will the proof thereof by the witnesses might \u2014 would almost necessarily \u2014 in the course of the litigation, be delayed greatly longer than six months. It is not contemplated by the statute that the proof of the will by the witnesses thereof shall be contested at the time of taking the proof \u2014 in the first instance; this is to be done by a caveat and proper contest of it. This is the ordinary course pursued in contesting wills. Hence the statute (The Code, \u00a7 2149) requires th&t \u201cevery Clerk of the Superior Court (the probate ofiScer) shall take in writing the proofs and examination of the witnesses touching the execution of a will, and he shall embody the substance of such proofs and examination, in case the will is admitted to probate, in his certificate of the probate thereof, which certificate must be recorded with the will. The proofs and examinations, as taken, must be filed in the office.\u201d Etheridge v. Corprew, 3 Jones, 14.\nThe proceeding in the matter of the probate of a will is summary and in rem, and at first it is ordinarily ex parte, and the contest of it is begun by a caveat. (The Code, \u00a7 2158.) The purpose of the statute is not to prevent the examination of the witnesses of the will, after such lapse of six months, on the trial of the issue devisavit vel non in the course of a contest of it, but, as we have said, it is to require that they shall not be allowed to prove it in the first instance \u2014 when it is first presented for probate \u2014 after that time, unless it shall have been put in writing within ten days next after the making thereof.\nIn this case the alleged will was put in writing, presented to the Clerk of the Superior Court for probate, and it was proved by the witness thereof before him \u2014 that is, he took \u201c in writing the proofs and examination of the witnesses\u201d in respect to the making of it, and made the order of citation\u2014 publication of notice \u2014 but he did not allow the will, as proved, admitted to probate, and ought not to have done so until the proper notice had been given. It was given, and thereupon the appellees objected that the witnesses had not proved the will within six months, as required by the .statute, and moved that the proceeding be dismissed.\nThe Clerk, improperly, so ordered. On appeal the Court below properly overruled the order of the Clerk, and directed that he proceed according to law in the matter of the probate. In this there is no error. The order appealed from must be affirmed, and the same carried into effect.\nAffirmed.",
        "type": "majority",
        "author": "Merrimon, J."
      }
    ],
    "attorneys": [
      "Mr. C. W. Tillett (Messrs. Clarkson & Wilson filed a brief), for the propounders.",
      "Mr. Clement Dowd, contra."
    ],
    "corrections": "",
    "head_matter": "In the matter of the Probate of the Will of REBECCA ANNIE HAYGOOD.\nProbate \u2014 Nuncupative Wills.\n1. A nuncupative will which has been reduced to writing within ten days after it was made, may be proved for probate either before or after the lapse of six months after the making thereof ; but if not put in writing within the ten days, then it cannot be proved after the expiration of the six months.\n\u25a02. After the contents of the will are established within the time and in the manner prescribed by the statute' \u2014 The Code, \u00a7 2148 \u2014 it cannot be admitted to probate until the citation or publication has been made according to the statute, but it is not essential that this citation or publication and the probate based thereon shall be completed within six months from the making of the alleged will.\nThis is an appeal from an order of Gilmer, J., made at August Term, 1888, of the Superior Court of Mecklenburg County, in the matter of the will of Rebecca Annie Haygood.\nThe following is the case settled on appeal for this Court :\n\u201cThis was a petition for probate of a nuncupative will before the Clerk of the Superior Court of Mecklenburg County.\nRebecca Annie Playgood died at her residence in Mecklen-burg County, N. C.,' on the 25th day of September, 1887, having, on the day before her death, as alleged by petitioners, made a nuncupative will, in which the petitioners were named as legatees.\nThere was no executor named in the will.\nOn the day of the filing of the petition for the probate of the will, to-wit: on the 23d day of March, 1888, the Clerk, in conformity with the prayer of petitioners, caused the witnesses to said will to be brought before him, and said witnesses then and there reduced the will to writing, and made before him the affidavits which appear in the record.\u201d\nAll the other material facts appear in the following order, made by his Honor Judge Gilmer, at the August Term, 1888, \u25a0of the Superior Court of Mecklenburg County:\n\u201c This cause coming on to be heard upon the appeal by the propounders from the order of ihe-Clerk of the Superior Court refusing to allow the propounders to introduce testimony tending to establish and prove the said will, the Court finds the facts to be as follows:\nThat the said will was made on the 24th da,\u00a7 of September, 1887; that said will was reduced to writing on the 23d day of March, 1888; that on the 23d day of March, 1888, a petition was filed in due form of law for the probate of said will before the Clerk of the Superior Court by the propound-ers; that on said day and at the time of the filing of the application for the probate of the will, an order was made by the Clerk citing the next of kin of the testatrix to appear to contest said will, should they think proper, as required by law, which citation was duly published for six successive weeks in the \u2018 Charlotte Democrat,\u2019 a newspaper published in the city of Charlotte; that at the expiration of the said publication of the citation, the propounders appeared in Court and offered testimony tending to establish and prove the said will; whereupon, certain of the next of kin appeared before the Clerk and objected to the introduction of testimony to establish the said will, upon the ground that the said alleged will was not put in writing within ten days from the making thereof; and, further, that the order of publication made in the cause within six months from the making of said will, calling in the next of kin of the testatrix to contest said will, if they saw proper, did not expire within six months from the making of said will, which objection was sustained by the Clerk, who, thereupon, refused to allow the propounders to introduce testimony offered for the purpose aforesaid; and the matter having been debated in open Court by counsel for the respective parties, it is thereupon \u25a0ordered, adjudged and decreed by the Court that the said will was offered for probate within the time required by law, and the case is hereby remanded to the Clerk of the Superior Court to the end that the said will may be admitted to-probate and that further proceedings may be had thereon according to law.\u201d\nFrom this order the parties interested in opposition to the will proposed for probate, having excepted, appealed.\nMr. C. W. Tillett (Messrs. Clarkson & Wilson filed a brief), for the propounders.\nMr. Clement Dowd, contra."
  },
  "file_name": "0574-01",
  "first_page_order": 606,
  "last_page_order": 610
}