{
  "id": 11272269,
  "name": "In re POLLY GARLAND'S WILL",
  "name_abbreviation": "In re Garland's Will",
  "decision_date": "1912-11-20",
  "docket_number": "",
  "first_page": "555",
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      "cite": "128 N. C., 58",
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      "cite": "47 Mich., 439",
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  "last_updated": "2023-07-14T16:32:58.976002+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "In re POLLY GARLAND\u2019S WILL."
    ],
    "opinions": [
      {
        "text": "Clark, O. J.\nThere is no natural right to devise or bequeath property. It is entirely statutory. When one is dead he no longer owns anything. No one has the right, unless by statute, to dispose of his property after death, or even of his body. 2 Blackstone, 10; Burroughs v. R. R., 15 Conn., 129; Crane v. Reeder, 21 Mich., 73; S. v. Hamlin, 86 Mo., 605; Sturgis v. Ewing, 18 Ill., 186; Gibson v. VanSyckle, 47 Mich., 439; Hodges v. Lipscomb, 128 N. C., 58. Society takes possession of both, and in countries where there is no will allowed, and in other countries when there is no will legally executed, provides for the distribution of the property, and the regulations are very diverse. Mr. Blackstone tells us (2 Blackstone Com., 374, 491) that in Greece wills were not permitted except at Athens, and there not until the time of Solon. Plutarch in his life of Solon earnestly denounces the evils produced by this innovation. In Rome wills were not permitted till the \u201cLaw of the Twelve Tables\u201d (2 Blackstone, 491), and were unknown among the ancient Germans (Tacitus Germania, chap. 20). In England down to the time of Henry 11., only one-third of the personalty, called \u201ca reasonable part,\u201d could usually be bequeathed. This was held to be law in Magna Carta and was still the law in Scotland in Blackstone\u2019s time (2 BL, 493). This was gradually changed in England, but the power to bequeath all of the j>ersonalty did not become fully recognized until the statute of 15 George II., less than two centuries ago. Wills of realty were not valid till the statute of 34 Henry VIII., ch. 5. Indeed, under the feudal law, land did not descend to the heir without payment of a fine, and the tenants in capite paid primer seisin of one year\u2019s profits of the land.\nIn England, the oldest son still inherits by right of primogeniture, and in France and other countries that observe the Codie Napoleon a father has no right to devise more than a child\u2019s part of his estate. Hpon this principle of the right of the State to control or dispose, England levies a graduated inheritance tax of from 1 to 15 per cent upon all property before it is allowed to pass by descent or devise, and in France the inheritance tax, wbicb is taken out before tbe estate can pass by descent or devise, ranges from 1 to 23% per cent, graduated according to tbe size of tbe estate. Tbe disposition of tbe property of tbe decedent being purely statutory, tbe regulation thereof, botb in cases of testacy and intestacy, varies greatly in different countries and from time to time witb changes in tbe statute.\nTbe propounders in this case claim tbe personal property of tbe decedent, Polly Garland, by virtue of an alleged nuncupa-tive will, tbe. requirements of which, under our statute, are prescribed. Eevisal, 3127 (3). These are that such will must, be proved \u201con tbe oath of at least two credible witnesses, present at tbe making thereof, who state that they were specially required to bear witness thereto by tbe testator himself. It must als.o be proved that such nuncupative will was made in tbe testator\u2019s last sickness, in bis own habitation, or where be bad been previously resident for at least ten days, unless be died on a journey or from home.\u201d It is further provided that such will must be proved within six months from tbe making thereof, unless it was put in writing within ten days from such making, and further, that a citation must first be published \u201cfor six weeks in some newspaper in tbe State, to call in tbe widow and next of kin to contest tbe will, if they think proper.\u201d Such will can dispose only of personal property. Newman v. Bost, 122 N. C., 533.\nIn tbe present case it is not contended that there is any defect in these requirements except in tbe first particular, as to tbe witnesses being requested to bear witness. Tbe evidence is that the decedent said to tbe witness, Charles Warwick, \u201cI want to fix up my business. I want to make a will,\u201d and directed him to call tbe witnesses, which be did, and when Letbea Cox bad come to tbe bedside, tbe testatrix, in tbe presence of said Warwick and Letbea Cox, made tbe following statement: \u201cI want Hester\u2019s children to have all I have around here, except my notes and money, wbicb I want equally divided between Cornelius and Hester\u2019s children. I don\u2019t want Emma or any of Win Garland\u2019s folks to have anything I have got, as they have now got two or three times their share. All that is here is mine. Rube bad nothing bere.\u201d Tbat sbe believed berself in extremis is shown by ber statement, \u201cI might get so I can\u2019t talk, and I want the heirs to have what I have got.\u201d\nIt is true tbat sbe expressed ber wish to make a written will, and asked the witness Warwick if be could write the will, but after tbat sbe remarked, \u201cI might get so I can\u2019t talk,\u201d and said, \u201cCall witnesses,\u201d and thereupon Warwick called Mrs. Cox, and the declaration as above was made. This statement was made on Tuesday, and sbe died on the following Saturday night. On Friday sbe made an effort to have Dr. Bradshaw write ber will, but some one came in and it was not .written.\nHer remark to Warwick, \u201cGet witnesses,\u201d and, upon Warwick 'calling Mrs. Cox, her statement of ber wishes when they came to ber bedside was a sufficient request by the testatrix to the witnesses. Indeed, Mrs. Cox testified: \u201cSbe told me to stand around and listen to what sbe said and to witness it. Her mind was good.\u201d\nThis case much resembles Haden v. Bradshaw, 60 N. C., 259, where $13,000 in cash was bequeathed, and in which the Court said: \u201cThe statute requires tbat only some of the witnesses present at the making of the nuncupative will shall be \u2018specially required to bear witness\u2019 to it.\u201d The Court said further: \u201c\u00edhe object of this requirement of the statute is tbat it may be known with certainty tbat the testator was making bis will and tbat witnesses, by having their attention' drawn to it, might understand and recollect what the will was.\u201d\nThe doctrine in Haden v. Bradshaw has been followed in Smith v. Smith, 63 N. C., 637; Bundrick v. Haygood, 106 N. C., 468; Long v. Foust, 109 N. C., 114. The evidence in this case is very similar to tbat in Haden v. Bradshaw and Smith v. Smith. In Bundrick v. Haygood, relied on by the eeveator, the witnesses did not say or intimate that they were called as witnesses by the testatrix, who merely said tbat sbe \u201cwanted to see ber sister and wanted ber to have all ber things,\u201d but did not express any intention, as bere, to make a will or call any witnesses. In the present case, if the testimony of the witnesses Warwick and Cox is to be believed, the statute was complied with. The case should have been submitted to the jury.'\nReversed.",
        "type": "majority",
        "author": "Clark, O. J."
      }
    ],
    "attorneys": [
      "W. L. Lambert, Charles E. Green, Hudgins, Watson & Watson for propounders.",
      "Gardner & Gardner, Blaclc .& Wilson for caveator."
    ],
    "corrections": "",
    "head_matter": "In re POLLY GARLAND\u2019S WILL.\n(Filed 20 November, 1912.)\n1. Wills \u2014 Statutory Right.\nTlie right to dispose of property by will is entirely statutory, and in order to make a valid will, the requirements of the statute must be observed.\n2. Same \u2014 Nuncupative Wills \u2014 Personalty\u2014Interpretation of Statutes \u2014 Request\u2014\u201cBear Witness\u201d \u2014 Words and Phrases.\nOur statute, Revisal, sec. 3127 (3), among other things, requires that a nuncupative will must be proved \u201con the oath of at least two credible witnesses, present at the making thereof, who state that they were specially required to bear witness thereto by the testator himself,\u201d etc.: Held,, it is sufficient to show, on the question of the testator\u2019s requesting that the witnesses \u201cbear witness\u201d to the will, that believing himself to be in extremis, he told the witness during his last illness that he wanted to make a will, who, at his request, called in another, and while they were at his bedside, testator gave specific directions for the disposition of his personal property; and though he had theretofore expressed his wish to make a written will, and had failed in his effort to do so, the matters sought to be established as the nuncupative will were declared at a time he was apprehensive he would become unable to talk, and his death occurred about four days thereafter. \u25a0\nAppeal by propounders from Lyon, J., at July Term, 1912, of Mitchell.\nTbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.\nW. L. Lambert, Charles E. Green, Hudgins, Watson & Watson for propounders.\nGardner & Gardner, Blaclc .& Wilson for caveator."
  },
  "file_name": "0555-01",
  "first_page_order": 595,
  "last_page_order": 598
}