#### IN RE SHELTON’S WILL.

(Filed December 4, 1906).

Wills — Revocation—Declarations of Testator — Evidence—■ Handwriting — Comparison—Argument of Counsel — Exceptions — Burden of Proof as to Revocation — Harmless Error — Ambiguous Verdict.

1. A cancellation, obliteration or erasure made after the execution of a will, which does not in fact destroy some portion of the material substance of the will, does not constitute a revocation thereof.

2. To constitute a valid revocation of a will within the language of Rev., sec. 3115, it is essential, among other requirements, that the entire writing, including the signature, should be in the testator’s handwriting, where it is not attested by witnesses.

3. Declarations of the testator made after the date of an alleged revocation written on the margin of the will, tending to prove that he did not write or execute the alleged revocation, were competent.

4. In a proceeding' for the probate of a will, on the margin of which was written an alleged revocation by the testator, where it was admitted to be the testator’s will unless it had been revoked by the words written on its margin, declarations by the testator as to how he was going to leave his property, made before the date of the alleged revocation, were not competent.

5. The declarations of the testator. may not he received to explain, change or add to a written will, nor can it be revoked by parol.

6. While it was erroneous for counsel for the propounder of a will, in hisi argument, to show the alleged revocatory words on the margin of the will to the jury and point out differences in the formation of letters, etc., between the signature on the margin and the signature to the will, it does not constitute reversible error where the contestant failed to call the Court’s attention to it and took no exception at the time.

7. In a proceeding for the probate of a will, on the margin of which was written an alleged revocation, after the propounder offered the will and proved its due execution, the burden of proving that the will had been legally revoked was upon the contestant.

8. Where the Court erroneously put upon the propounder of a will the burden of proving that an alleged revocation of a will was not *219genuine, the contestant, at whose request it was done, cannot complain.

9. In a proceeding for the probate of a will, where the usual issue was submitted to the jury, “Is the paper-writing propounded for probate, and every part thereof, the last will and testament of deceased ?” to which the' jury answered, “Yes,” the verdict was not ambiguous because the will bore on its margin an alleged revocation, as the marginal words were no part of the will.

PROCEEDING beard by Judge Henry B. Bryan and a jury, in the Superior Court of Lincoln, wherein A. F. Shelton appeared as propounder for probate of a paper-writing as the last will of F. M. Shelton, who died on 25 January, 1905, and the administrator of the estate of F. M. Shelton appeared to contest the probate.

The paper-writing executed by F. M. Shelton in 1902 was offered in evidence as his will. The following words were written in ink on the margin thereof, to-wit:

“This will I this day make void and of no effect. January 16, 1905. - F. M. Shelton.”

The contention of the contestant was that said words revoked the paper-writing as a will. Evidence was introduced by the propounder and contestant. Many exceptions were taken by contestant to the admission and exclusion of testimony, to the charge of the Court and other rulings of his Llonor.

The following issue was submitted to the jury: “Is the paper-writing propounded for probate, and every part thereof, the last will and testament of E. M. Shelton ?” to which the jury answered “Yes.” IJpon this verdict the Court gave judgment that the paper-writing, excluding the words on the margin thereof, was the last will and testament of F. M. Shelton. The caveator appeals.

Olarleson & Buis, Tilleit & Guthrie, and G. IE. Ghilds, for the propounder.

. Ruffm & Presión for the caveator.

*220BeowR, J.

We will not discuss seriatim tbe twenty-seven exceptions set out in tbe record, but will consider only sucb phases of tbe case as we deem necessary. Tbe learned counsel for tbe caveator in an able argument and carefully prepared brief bas pointed out many alleged errors in tbe record, none of wbiclr are, in our opinion, sufficiently serious to warrant another trial of' tbe issue. It is plain that tbe testator did not revoke tbe will by “cancelling, tearing, or obliterating tbe same.”- It seems to be generally held that cancellation, obliteration, or erasure made after tbe execution of a will, which does not in fact destroy some portion of tbe material substance of tbe will, does not constitute a revocation thereof. Lewis v. Lewis, 2 Watts & S., 455; Ladd Will, 60 Wis., 188; Clark v. Smith, 34 Barb. (N. Y.), 140; Gardner v. Gardner, 65 N. H., 230; Wolf v. Bollinger, 62 Ill., 368; Matter of Miller, 50 N. Y., Misc., 70; Howard v. Hunter, 115 Ga., 357; Underbill on Wills, sec. 229; Redfield on Wills,- star page 318.

Tbe words written on tbe blank margin of this will do not touch any part of tbe will proper. It is unnecessary, however, to discuss this feature of tbe case, because tbe jury have in effect declared that tbe writing alleged to have been made by tbe testator purporting to revoke bis will was not in fact made by him.

It is contended that bis Honor erred in permitting tbe pro-pounder- to prove by Mattie Shelton tbe declarations of tbe testator made tbe day before be died, tending to prove that testator did not execute or write tbe alleged revocation and referring to and speaking of bis last will. His death occurred 25 January, 1905. Tbe alleged revocation is dated 16 January, 1905. These declarations did not tend to explain tbe meaning of anything contained in tbe writing, but only to prove that it was not tbe testator’s act. To make it a valid revocation within tbe language of our statute, Revisal, 3115, *221it is essential, amo-ng other requirements, that the entire writ-'1' ing, including tbe signature, should be in the testator’s hand-/ writing, inasmuch as it is not attested by witnesses. We will not either review or undertake to reconcile the conflicting decisions upon the admissibility of such evidence. It seems to be generally held that the declarations of a testator are not competent upon the question of the interpretation of the contents of his will, but as to the admissibility of declarations made by the testator upon the question of the factum of the will the authorities are divided. This Court seems long since to have aligned itself with those favoring the admission of such evidence, and it has been so classified by other courts. In Tucker v. Whitehead, 59 Miss., 594, the Supreme Court of that State says: “There are few questions in the law upon which authorities are more hopelessly in conflict than upon the admissibility of declarations of a deceased testator in support or in rebuttal of a supposed revocation of a testamentary paper. It has engaged the attention and elicited the logic of the greatest jurists who have adorned the bench of this or any country. Against the admissibility of such evidence are to be found the names of Kent, Story, and Livingston, and in favor of it those of Walworth, Ruffin, Lumpkin, and Cooley. Certainly we can hope to add nothing to the strength of an argument on either side, which has already been exhausted by such men as these.”

To the names of the great lawyers who support the admission of such evidence we will add the name of Henderson, who says in the case of Reel v. Reel, 8 N. C., 248 : “To our minds, to reject the declarations of the only person having a vested interest and who was interested to declare the truth, whose fiat gave existence to the will, and whose fiat could destroy, and in doing the one or the other could interfere with the rights of no one, involves almost an absurdity; and (with due deference to the opinions of those who have decided *222to the contrary, we say it) they are received, not upon the grounds of their being a part of the res gestee, for whether they accompany an act or not, whether made long before or long after making the will, is entirely immaterial as to their competency; those circumstances only go to -their weight or credit with the tribunal which is to try the fact, and the same tribunal is also to decide whether the declarations contain the truth or are deceptive, in order to delude expectants and procure peace. The English books are full of cases where the declarations of the testator were received, and without any objection as to their competency; generally the question being as to their weight.”

This language is quoted by Professor Wigmore as supporting the admission of such evidence as one of the exceptions to the general rule excluding hearsay. Vol. 3, sec. 1738.

The controlling authority of this case was acknowledged in 1832 by this Court in an opinion by Judge Ruffin in the following language: “The admissibility of the evidence rejected in the Superior Court was, as a general principle at the common law, determined in Reel v. Reel. The discussion in that case was full, and the decision is to be regarded by succeeding Judges, not only with respect, but, in my opinion, as authoritative. Eor this reason, I must say I do not consider that question open'to dispute.” Howell v. Barden, 14 N. C., 443. In this case Judge Ruffin gives very cogent reasons why the evidence should be received.

The Reel case was again cited and approved in 1888 in Patterson v. Wilson, 101 N. C., 597, by Mr. Justice Merri-mon, as follows: “The case of Reel v. Reel, 1 Hawks, 248 (8 N. C., 248), cited by the learned counsel for the appellant, has no application here. That was a contest of the will then in question; the purpose was not to interpret it and ascertain its meaning. The evidence as to what was said by the supposed testator was for the purpose of showing that he *223did or did not execute a valid will. In sucb case, no doubt, tbe pertinent declarations of tbe testator for proper purposes might be evidence.”

Tbe syllabus in Beel v. Beel was made and published many years before either of tbe cases approving it were decided, and that syllabus interprets tbe opinion as bolding that declarations of a testator made at any time subsequent to tbe execution of a will which go to show that it is not bis will, are admissible, and that it is tbe general principle dedncible from that case. Such is tbe interpretation placed upon it by Judge Merrimon, and by tbe accurate reporter of Patterson v. Wilson, supra, who states tbe law tersely and correctly when be says: “While under some circumstances tbe declarations of a testator are competent upon tbe question of tbe factum of the will, 'they are not competent upon tbe question of tbe interpretation of tbe contents of tbe will.”

In Waterman v. Whitney, 11 N. Y., 168, this case (Beel v. Beel) is spoken of as a leading case on this subject and as upholding tbe admissibility of tbe testator’s declaration made after tbe execution of tbe will in which be stated its contents to be materially different from wbat they were. Contestants offered to prove that at various times between tbe date of tbe supposed will and the death of Neel be bad repeatedly mentioned tbe substance of tbe will left in tbe bands of Black-ledge, and that according to those declarations tbe contents of the paper offered for probate were utterly variant from the will left with Blackledge. There were evidently two defenses set up in the Beel case, viz., undue influence and that tbe writing offered was not Neel’s true will, but a fraud and imposition perpetrated by Blackledge. Tbe declarations were ' offered in support of tbe latter contention. This is shown most clearly by the brief of Judge Gaston, counsel for contestants, who says: “The object of tbe evidence was to show by Neel’s repeated declarations wbat be believed to be tbe *224will be bad signed, in order, with tbe other facts proved, to establish a fraud.”

In tbe case before ns tbe propounders bave offered evidence, however strongly it may be contradicted, tending to ' prove that tbe writing on the margin, purporting to be a revocation, is a fraud and forgery. To- corroborate such evidence they offered tbe declarations of tbe testator made after tbe date of tbe writing and shortly before be died, tending to show that be had not revoked or destroyed bis will and that be knew nothing of such revocation. This evidence is offered to prove fraud in tbe factum as much so as in Reel's case. In tbe Evans will case, 123 N. C., 117, Reel’s case and Howell v. Barden, supra, are cited and approved. In that case declarations of tbe testatrix were admitted as competent, although held to be insufficient, to show that "the writing offered was not her will.

/ Declarations of this kind are admitted as an exception to I tbe general rule rejecting hearsay, because tbe testator has '.peculiar means of knowledge and may be supposed to be without motive to speak other than tbe truth. He differs from a grantor in a deed, because when bis declarations are made be has not parted with bis property, but retains control-over tbe subject-matter until bis death, and be must be presumed to know what disposition be has made of it. In Sugden v. St. Leonards, L. R. I., P. D., 154-225, Chief Justice C.odcburn reasons strongly in favor of tbe admission of such evidence, as follows: “Tbe testator must be taken to know the contents of tbe instrument be has executed. If be speaks of its provisions, be can bave no motive for misrepresenting them except in tbe rare instances in which a testator may bave tbe intention of misleading by bis statements respecting bis will. Generally speaking, statements of this kind are honestly made, and this class of evidence may be put on the same footing with declarations of members of a family in matters of pedigree.” *225In tbe same case Sir George Jessel, Master of Rolls, wbo is regarded by Professor Wigmore as tbe greatest English Judge of tbe century, declares in substance that all tbe reasons in favor of any exception to tbe hearsay rule exist in tbe case of a testator declaring tbe contents of bis will. Furthermore, says be: “Tbe Court should be anxious not narrowly to restrict the rules of evidence, which were made for tbe purpose of furthering truth and justice, but guided by those great principles which have guided other tribunals in other countries in admitting this kind of evidence generally, to admit it ' at all events in the special case we have under consideration.”

We are not without support in this country. Practically the same kind of evidence was admitted in the following cases: Conoly v. Gayle, 61 Ala., 116; Patterson v. Hickey, 32 Ga., 159; McDonald v. McDonald, 142 Ind., 55; Scott v. Hawk, 77 N. W., 467; Schnee v. Schnee, 61 Kan., 643; Muller v. Muller, 108 Ky., 511; Lambies’ Estate, 97 Mich., 49; Lane v. Hill, 68 N. H., 275; Beadles v. Alexander, 9 Baxter, 604. In the latter case the declarations of testator that he had signed a will were held admissible in corroboration of other evidence, as “the declaration of the only party having a vested interest to declare the truth,” approving Reel v. Reel. In Tynan v. Paschal, 27 Tex., 300, declarations were received to show the execution of a will and to rebut the inference of a revocation. In Sawyer v. Smith, 8 Mich., 411, the declarations of the testatrix were admitted to aid the jury in determining whether a mutilation of a will had been made by the testatrix or by some other person.

We think, so far as the administration of the law in this State is concerned, the question may be regarded as settled.

This exception to the general rule prohibiting hearsay, however, does not make competent the testimony of the witness, Mollie Beatty, by whom contestant offered to prove statements made by the testator in November, 1904, “as to *226bow be was going to leave bis property.” This will was made in 1902, and there is no allegation made of any fraud in tbe factum. It was evidently admitted during tbe whole course of tbe trial to be tbe testator’s will, unless it bad been revoked by tbe words written on its margin. Tbe case was tried on this theory. Tbe declarations to Mollie Beatty could not constitute a revocation in themselves, for that must be in writing, and they were made before instead of after tbe date of tbe writing offered as a revocation. It is generally agreed that tbe declarations of tbe testator may not be received to explain, change or add to a written will, nor can it be revoked by parol. 1 Redfield on Wills, 498. We see no view in which such evidence was competent on this trial.

We have carefully considered tbe several exceptions to tbe admission of testimony in respect to tbe bandwriting of the revocatory words. While bis Honor may have erred in some instances in bis rulings relating thereto, yet the alleged improper testimony was so colorless and tended to prove or disprove so little that we regard the errors as harmless.

Tbe contestant assigns error because counsel for propounder in bis argument showed tbe revocatory words on tbe margin of tbe will to tbe jury and pointed out differences in the formation of letters, etc., between tbe signature on tbe margin and tbe signature to tbe will. This was erroneous, as is held in Fuller v. Fox, 101 N. C., 119, but the contestant failed to call tbe Court’s attention to it and took no exception at tbe time, as tbe record shows.

We have examined carefully contestant’s prayers for instructions, as also bis motions to set aside tbe verdict as ambiguous and for judgment upon tbe verdict as rendered, and will consider them together.

With all deference for tbe learned counsel for tbe contestant, we think they have an erroneous idea about tbe character of tbe issue, and the burden of proving the revocation, and having succeeded in impressing their view as to the latter upon *227his Honor, we think they cannot complain of the charge to the jury. When the paper-writing purporting to be the testator’s will was offered by the propounder for probate he did not necessarily or in fact offer the revocatory words written on the margin of the paper containing the will. He offered only the will dated 15-July, 1902. This must necessarily be so, for the revocation is no part of the will, and had he been compelled to offer it as a part of the will, because written on the margin of the same paper, the effect would be to destroy the very will the propounder was offering for probate. The revocation was not a cancellation technically, nor was it a mutilation, and, therefore, needed no explanation upon the part of the propounder of the will. After the pxopounder had offered the will and proved its execution as required by law, if the jury believed the evidence, he was entitled to a verdict to the effect that the paper-writing was the last will and testament of F. M. Shelton, unless the contestant could prove that it had been revoked. The burden of proving that the will had been legally revoked was as much upon contestant as it would have been to prove undue influence, had such been the ground of contest. It was then up to contestant to go forward with his proof and to offer the revocation in evidence and to prove its execution or that it was all in testator’s handwriting and found in a secure place, as required by statute. So far as the record discloses, no question seems to have been made in the Superior Court about the security of the place, and his Honor’s charge plainly relieves contestant from proving that essential fact.

The case.appears to have been tried solely upon the contested fact of the genuineness of the handwriting of the alleged revocation and the signature thereto. His Honor charged that “If, the jury find that the paper-writing was properly executed, and the testator was sound in mind, then they should answer the issue ‘Yes,’ unless they further find *228that tbe will was revoked by the writing on the margin of the paper. This writing puts the burden on the propounders of the will to account for this — and it is not the will of the testator, E. M. Shelton, until they do so to the satisfaction of the jury. The law presumes that the will is revoked. This writing on the margin is prima facie evidence of revocation, and the propounders must rebut it.” Thus the Court placed upon the propounders the burden to prove the negative facts that the revocation and signature were not in the handwriting of the testator and that it was not found in a secure place, and gave contestant the full benefit of a prima facie case. This relieved the contestant from proving at first hand any of the statutory essentials necessary to constitute a valid revocation, and puts the burden upon the propounder to disprove them all. When he proved the will, he had to disprove the revocation. While this is erroneous, we see no reason why contestant should complain, as it was done at his request. It was far more than he was entitled to.

There is plainly no ambiguity in the verdict as contended by contestant. The issue is in the form always submitted in contests growing out of the probate of wills. It is contended by contestant that, as the marginal words, “This will I this day malee void and of no effect. Jan. 16, 1905. E. M. Shelton,” were a part of the paper-writing, as introduced by pro-pounder, the verdict was, therefore, ambiguous and unintelligible. The marginal words were not offered as any part of the will of the testator. The paper-writing propounded and established by the verdict as the will of E. M. Shelton is the one dated 15 July, 1902, and the marginal words are no part of it.

We have examined the record in this case with care and all the exceptions of contestant, and we find no error of which he has just cause to complain.

No Error.