{ "id": 8653724, "name": "In re LAST WILL AND TESTAMENT OF EMMA SOUTHERLAND", "name_abbreviation": "In re Last Will & Testament of Southerland", "decision_date": "1924-10-08", "docket_number": "", "first_page": "325", "last_page": "328", "citations": [ { "type": "official", "cite": "188 N.C. 325" } ], "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": "181 N. C., 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655928 ], "opinion_index": 0, "case_paths": [ "/nc/181/0320-01" ] }, { "cite": "184 N. C., 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270732 ], "opinion_index": 0, "case_paths": [ "/nc/184/0418-01" ] }, { "cite": "167 N. C., 405", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272807 ], "opinion_index": 0, "case_paths": [ "/nc/167/0405-01" ] }, { "cite": "11 A. L. R., 49", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "33 L. R. A., 1018", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "94 N. C., 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651814 ], "opinion_index": 0, "case_paths": [ "/nc/94/0648-01" ] }, { "cite": "89 N. C., 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683355 ], "opinion_index": 0, "case_paths": [ "/nc/89/0441-01" ] }, { "cite": "29 N. C., 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685382 ], "opinion_index": 0, "case_paths": [ "/nc/29/0092-01" ] }, { "cite": "6 N. C., 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688005 ], "opinion_index": 0, "case_paths": [ "/nc/6/0133-01" ] }, { "cite": "46 N. C., 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681841 ], "opinion_index": 0, "case_paths": [ "/nc/46/0150-01" ] }, { "cite": "175 N. C., 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659797 ], "opinion_index": 0, "case_paths": [ "/nc/175/0420-01" ] }, { "cite": "146 N. C., 379", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "185 N. C., 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656102 ], "opinion_index": 0, "case_paths": [ "/nc/185/0357-01" ] }, { "cite": "154 N. C., 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652912 ], "opinion_index": 0, "case_paths": [ "/nc/154/0559-01" ] }, { "cite": "187 N. C., 845", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655308 ], "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/nc/187/0845-01" ] } ], "analysis": { "cardinality": 536, "char_count": 8735, "ocr_confidence": 0.479, "pagerank": { "raw": 2.401590738883199e-07, "percentile": 0.7989716774993445 }, "sha256": "e6d9d658347f6b17b2f9dbec47b5540e16ebb9f9763558e2cecfe57d027679d4", "simhash": "1:540654037f8db9a1", "word_count": 1507 }, "last_updated": "2023-07-14T18:44:41.585516+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re LAST WILL AND TESTAMENT OF EMMA SOUTHERLAND." ], "opinions": [ { "text": "Adams, J.\nThe only heirs at law of the alleged testatrix are her two children, E. E. Southerland and Lucy Jolly, the propounders, and her grandchild, Susie Lee, tbe caveator. Susie\u2019s mother, who was a sister of the propounders, intermarried with T. W. Lee on 14 October, 1914, and died on 10 October, 1918. Two days before her mother\u2019s death, Susie Lee, when about nine months of age, while critically ill, was committed by her father to the friendly keeping of H. D. Williams and his wife.\nThe cause came on for hearing, and the propounders, after offering-evidence tending to establish the paper-writing as Mrs. Southerland\u2019s holograph will, rested their case; whereupon, H. D. Williams, a witness for the caveator, was permitted to rehearse the circumstances under which the child had been received into his home. His testimony included reference to her illness, to that of her mother and Mr. Souther-land, and to the difficulty experienced in procuring the services of a nurse. To this evidence the propounders excepted, chiefly on the ground that it was prejudicial to them and threw no light on the mental condition of the alleged testatrix or the question of undue influence.\nThe issues relating to mental capacity and undue influence were not answered; and if it be granted that the evidence objected to was calculated to excite in the mind of the jury a sympathetic interest in behalf of the caveator, still it was properly admitted if it was competent for any purpose. The admission of evidence which is competent for some purposes, but not for all, does not constitute reversible error unless at the time it is admitted the appellant request that its purpose be restricted. Rule 21, Supreme Court. It will be noted, the first issue incidentally involved the question whether it was Mrs. Southerland\u2019s purpose practic\u00e1lly to ignore her grandchild in the disposition of her property. The propounders evidently concluded that such was her purpose, for upon no other theory can the writing be upheld as her will. In controverting this theory it was competent for the caveator to show the relation that existed between her and her grandmother; and as tending to show such relation, evidence of certain circumstances to which the witness testified was both relevant and material. It matters not that a part of the evidence may have been incompetent, for a general exception will not be considered unless all the evidence objected to is incompetent. Dellinger v. Building Co., 187 N. C., 845, 848; Rollins v. Wicker, 154 N. C., 559.\nNor can the exception to Mrs. Williams\u2019 testimony be sustained. What she said was at most merely the recital of a question asked her by Mrs. Jolly, and does not constitute reversible error, particularly in view of the verdict, which omits an -answer to the second and third issues. Technical error, unless prejudicial, is generally held insufficient ground for a new trial. Plyler v. R. R., 185 N. C., 357; Penland v. Barnard, 146 N. C., 379.\nTbe propounders excepted to certain instructions relating to tbe first issue, and to tbe form in wbicb it was submitted, on tbe ground tbat the trial judge imposed upon them tbe burden of establishing the testamentary intent, as well as the formal execution of the paper.\nIt is not denied that tbe burden was on the propounders to establish the formal execution of the writing (In re Chisman, 175 N. C., 420), but it is insisted that, upon proof of such execution, the animus testandi was to be inferred. This principle obtains where the testamentary character of tbe instrument appears on its face and only a question of construction is presented (Outlaw v. Hurdle, 46 N. C., 150); for when tbe animus testandi is established, tbe character of the instrument is fixed; but when.tbe instrument on its face is equivocal and it is doubtful whether it is intended to operate as a will, a deed, or a gift, parol evidence may be considered. Robertson v. Dunn, 6 N. C., 133; Clayton v. Liverman, 29 N. C., 92; Davis v. King, 89 N. C., 441; Egerton v. Carr, 94 N. C., 648; note to Ferris v. Neville, 89 A. S. R., 488; note to Smith v. Smith, 33 L. R. A., 1018; note to Shaull v. Shaull, 11 A. L. R., 49. See, also, Phifer v. Mullis, 167 N. C., 405; In re Seymour, 184 N. C., 418. In Heaston v. Krieg, 119 A. S. R. (Ind.), 475, it is said: \u201cThe animus testandi does not depend upon tbe maker\u2019s realization that the instrument he is executing is a will, but upon his intention to create a revocable disposition of his property, to take effect after his death.\u201d\nTbe paper offered for probate is equivocal. The maker designates several beneficiaries, but names no executor or other person to deliver the gifts. It may fairly be said tbat there is some indication of disposition inter vivos and of testamentary intent; and under these circumstances his Honor properly submitted to tbe jury tbe determination of the maker\u2019s purpose. Tbe burden of showing such intent was, of course, upon the propounders.\nThe signature, \u201cMother,\u201d is sufficient if the maker adopted it as her own for the purpose of executing the instrument. Wise v. Short, 181 N. C., 320.\n\u00a5e find\nNo error.", "type": "majority", "author": "Adams, J." } ], "attorneys": [ "R. D. Johnson and Stevens, Beasley & Stevens for propounders.", "George R. Ward and E. K. Bryan for caveator." ], "corrections": "", "head_matter": "In re LAST WILL AND TESTAMENT OF EMMA SOUTHERLAND.\n(Filed 8 October, 1924.)\n1. Appeal and Error \u2014 Evidence \u2014 Competent in Part \u2014 Objections and Exceptions.\nWhere evidence is-competent for some purposes, tbe party objecting should request that it be confined to that purpose, and his general exception to its admission will not be sustained on appeal.\n2-. Wills \u2014 Holograph Wills \u2014 Evidence\u2014Ambiguity\u2014Intent\u2014Appeal and Error.\nUpon the trial of a caveat to a holograph will, when an inquiry in the issue is to the intent of the testatrix to make the will, or the animus testandi wherein the caveator\u2019s interest as an heir at law was practically omitted, evidence as to the relationship or regard the testatrix had for the caveator is admissible upon the question of the intent of the testatrix to make a will, though it be of such a character that might influence the sympathy of the jury in the caveator\u2019s favor.\n3. Appeal and Error \u2014 Evidence\u2014Harmless Error.\nWhere the evidence itself and when taken in connection with the verdict cannot have been to the prejudice of appellant, reversible error will not be held by the Supreme Court on appeal.\n4. Wills \u2014 Evidence\u2014Intent\u2014Burden of Proof \u2014 Instructions.\nWhere the animus testandi does not appear by construction of the instrument itself offered as a last will and testament, but is left uncertain, it is competent to.show it or disprove it by parol or extrinsic evidence for the jury to decide; and an instruction on this phase of the case does not affect the burden of proof to the propounder\u2019s prejudice after the execution of the paper-writing has been prima facie proven by him.\n5. Wills \u2014 Signature\u2014\u201cMother.\u201d\nThe signature of the word \u201cMother\u201d to a paper-writing offered as a holograph will is sufficient if it is shown that the maker adopted it as her own for the purpose of executing the instrument.\nAppeal from Horton, J., at March Term, 1924, of DupliN.\nIn March, 1923, the following paper was offered for probate as the last will and testament of Mrs. Emma Southerland:\nMl. YeRNON SPRINGS, N. C.,\nFriday, September 1st.\nThis is what I want done with a fiew of my things $200.00 for Bariam Orphanage My diamond ring to Elbert for his first little girl Black silk taffata for Lucy or Nora Coat suit for Mary Lawrence $5.00 to the dear little twins, $2.50 to Bettie\u2019s baby Jesse \u2014 My wedding ring to lucy Cameo to Lucy if she wants it.\nGive Susie Burdett something I cant think of anything suitable now. Elbert have his Papa\u2019s knife.\nPay my church dues to the end of year.\nPay my Auxiliary dues for this year, and 5.00 gift to budget all left to go to Elbert & Lucy. Mother.\nBefore the paper was admitted to probate, a caveat was filed.\nThe cause was thereupon transferred to the civil-issue docket, and at the trial the following verdict was returned :\n1. Did Mrs. Emma Southerland write all of the paper-writing propounded with intent that it should be operative as her last will and testament, and was it found after her death among valuable papers and effects? Answer: No.\n2. If said Mrs. Emma Southerland wrote said paper-writing propounded, did she at the time have sufficient mental capacity to make and execute a last will and testament ? Answer: .\n3. Was the said execution of said paper-writing, if written by Mrs. Emma Southerland, procured by undue influence exerted over her, as alleged by the caveators ? Answer: .\n4. Is said paper-writing the valid last will and testament of said Mrs. Emma Southerland? Answer: No.\nR. D. Johnson and Stevens, Beasley & Stevens for propounders.\nGeorge R. Ward and E. K. Bryan for caveator." }, "file_name": "0325-01", "first_page_order": 395, "last_page_order": 398 }