{ "id": 8654518, "name": "In re Will of MISS LENORA FULLER, MRS. BETTIE A. BARNWELL and MRS. SARAH M. BURTON", "name_abbreviation": "In re Will of Fuller", "decision_date": "1925-04-22", "docket_number": "", "first_page": "509", "last_page": "515", "citations": [ { "type": "official", "cite": "189 N.C. 509" } ], "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": "185 N. C., 798", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "167 N. C., 5", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "170 N. C., 86", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "181 N. C., 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655699 ], "opinion_index": 0, "case_paths": [ "/nc/181/0227-01" ] }, { "cite": "123 N. C., 252", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "155 N. C., 94", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "48 N. C., 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2086814 ], "opinion_index": 0, "case_paths": [ "/nc/48/0202-01" ] }, { "cite": "33 N. C., 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276625 ], "opinion_index": 0, "case_paths": [ "/nc/33/0632-01" ] }, { "cite": "52 N. C., 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2088541 ], "opinion_index": 0, "case_paths": [ "/nc/52/0593-01" ] }, { "cite": "32 N. C., 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1972615 ], "opinion_index": 0, "case_paths": [ "/nc/32/0219-01" ] }, { "cite": "3 N. C., 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11977120 ], "opinion_index": 0, "case_paths": [ "/nc/3/0232-01" ] }, { "cite": "125 N. C., 104", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "162 N. C., 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270219 ], "opinion_index": 0, "case_paths": [ "/nc/162/0072-01" ] }, { "cite": "177 N. C., 503", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "164 N. C., 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657908, 8657878 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/164/0363-02", "/nc/164/0363-01" ] }, { "cite": "152 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270597 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/152/0258-01" ] }, { "cite": "150 N. C., 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271766 ], "opinion_index": 0, "case_paths": [ "/nc/150/0507-01" ] }, { "cite": "125 N. C., 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273653 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/125/0314-01" ] }, { "cite": "188 N. C., 498", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "188 N. C., 705", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "185 N. C., 798", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 699, "char_count": 18027, "ocr_confidence": 0.457, "pagerank": { "raw": 1.251333986428016e-07, "percentile": 0.6101266907839028 }, "sha256": "eeacd05a745d73972bf21f3f98794abd11308dab73de8ecd98d3fdd1ac82889e", "simhash": "1:f7aa5420fd7ca315", "word_count": 3361 }, "last_updated": "2023-07-14T21:40:32.095485+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Will of MISS LENORA FULLER, MRS. BETTIE A. BARNWELL and MRS. SARAH M. BURTON." ], "opinions": [ { "text": "Clarkson, J.\nMiss Lenora Fuller, Mrs. Bettie A. Barnwell and Mrs. Sarab M. Burton, of Caswell County, N\u201d C., being tenants in common with the heirs at law of John Thomas, deceased, made and executed what purported to be their last will and testament, a joint will giving and devising to their nieces and nephew their interest in certain lands in Caswell County. Mrs. J. B. Thomas was named executrix of the will.\nOf the above named parties, Lenora Fuller died in 1920, Bettie A. Barnwell in 1923, and Sarah M. Burton in May, 1924. On 16 June, 1924, Mrs. J. B. Riggs (formerly Mrs. J. B. Thomas) presented to the clerk of the Superior Court of Caswell County for probate in common form a joint will of the three above named parties, and the same was admitted to probate in common form by said clerk. Thereafter, and in August, 1924, certain parties who would have taken certain interests in the property left by the three makers of said will, filed a caveat and in said caveat set up as grounds for declaring said will void charges of undue influence, lack of mental capacity, and that the will was not executed according to law.\nThe concluding part of the will and attestation clause is as follows:\nUn witness whereof we, Bettie A. Barnwell, Sarah Burton, Lenora Fuller, hereunto set our hands and seals this 16th day of November, 1911. \u2022\nBettie A. Barnwell.\nSabah M. BurtoN.\nLeNoea Fuller.\n\u201cSigned, sealed and published and declared by the said Bettie A. Barn-well, Sarah Burton and Lenora Fuller to be their last will and testament, in the presence of us, who at their request and in their presence, of each other do subscribe our names as witnesses thereto.\nJ. L. Warren.\nW. H. Warren.\u201d\nAlthough the caveators have numerous exceptions and assignments of error in the record, in their brief they say: \u201cWhile the caveators rely upon all their exceptions from 1 to 14, inclusive, waiving none of them, they prefer to discuss them together as an appeal only from the judgment of the court, as being contrary to law and against the \u2019evidence in the case, and especially as to the legal execution of the script propounded as a valid will under our statute, C. S., 4131, which is mandatory as to how a valid will must be excuted.\u201d\n\u201cExceptions in the record not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.\u201d Rules of Practice in the Supreme Court, 185 N. C., 798 (part of rule); In re Westfeldt, 188 N. C., 705; S. v. Godette, 188 N. C., 498.\nCaveators confine their assignment of error to the single proposition: \u201cCav\u00e9ators contend that this will is absolutely void, for that it has not been executed according to the statutory requirements as laid down in N. S., 4131, Rev., 3113, CyC., Vol. 40, p. 1097C.\u201d\nThe material part of C. S., 4131, to be considered in the determination of this case is as follows:\n\u201cNo last will or testament shall be good or sufficient in law to convey or give any estate, real or personal, unless such last will shall have been written in the testator\u2019s lifetime, and signed by him, or by some \"other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, no one of whom shall be interested in the devise or bequest of the estate, except as hereinafter provided,\u201d etc.\n(1) The will must be in writing.\n(2) The will must be signed by the testator or by some other person in his presence and by his direction.\n(3) Subscribed in his presence by two disinterested witnesses at least.\nIt is admitted that the will was in writing, actually signed by the three alleged testatrixes, and the witnesses disinterested.\nThe contest is over the fact, did the two witnesses subscribe the will as witnesses thereto in the presence of the three alleged testatrixes ? If the witnesses did, the will is valid under the statute; if they did not the will is void.\nIt is not necessary that the testatrix should have signed the paper as her will, in the presence of witnesses, provided she afterwards acknowledged it before them. Burney v. Allen, 125 N. C., 314; In re Bowling, 150 N. C., 507; In re Herring's Will, 152 N. C., 258; In re Cherry\u2019s Will, 164 N. C., 363.\nWalker, J., has thoroughly gone into the whole matter, In re Will of Margaret Deyton, 177 N. C., 503. \"We quote in part: \u201cIt is not required that subscribing witnesses should sign in the presence of each other: Watson v. Hinson, 162 N. C., 72; Collins v. Collins, 125 N. C., 104; Eelbeck v. Granberry, 3 N. C., 232; Rev., sec. 3113, nor is it necessary that the will should have been attested in the same room, provided the witnesses signed it, where the testator could see them do so; that is, could see them sign the very paper that she had signed, so as to prevent tbe substitution of the genuine paper for another and spurious one. It was held in Graham v. Graham, 32 N. C., 219 : \u2018A will is well attested by subscribing witnesses when, though not in the same room with the testator, they are in such a situation that the testator either sees or has it in his power to see that they are subscribing, as witnesses, the same paper he had signed as his will. 'Where the supposed testator could only see the backs of the witnesses, but not the paper they were subscribing: Held, that the paper-writing was not well attested as a will.\u2019 See, also, Cornelius v. Cornelius, 52 N. C., 593; Bynum v. Bynum, 33 N. C., 632. Generally the witnesses are not required to subscribe the will at the express request of the testator. He need not formally request the witness to attest his will as the request may be implied from his acts and from the circumstances attending the execution of the will. Thus a request will be implied from the testator\u2019s asking that the witness be summoned to attest the will, or by his acquiescence in a request by another that the will be signed by the witnesses.\u2019 Thompson on Wills, 449; In re Herring's Will, 152 N. C., 258; Burney v. Allen, 125 N. C., 314; In re Cherry\u2019s Will, 164 N. C., 363. Testator must have seen the witnesses, or have been able to do so at the time of the attestation in the position he then was. Jones v. Tuck, 48 N. C., 202.\u201d\nIn Shell v. Roseman, 155 N. C., 94, it was said: \u201cWe are not inadvertent to the fact that the plaintiff made a statement, on cross-examination, as to a material matter, apparently in conflict with his evidence when examined in chief, but this affected his credibility only, and did not justify withdrawing his evidence from the jury. Ward v. Mfg. Co., 123 N. C., 252; Loggins v. Utilities Co., 181 N. C., 227.\u201d Hadley v. Tinnin, 170 N. C., 86; Christman v. Hilliard, 167 N. C., 5.\nThe law is plain. What are the facts? W. H. Warren, one of the subscribing witnesses, testified in part :\n\u201cI live at Hightower, and lived there in 1911; conducted a store there. In 1911 I knew Miss Lenora Fuller, Mrs. Bettie A. Barnwell, and Mrs. Sarah Burton. They lived a mile or a little further from the store. They requested me to witness their will, at the store, my place of business. At the same time they requested my father to witness it. My father and myself were present there when the will was witnessed and signed. (Witness handed a paper, and stated this is the will of Mrs. Barnwell, Mrs. Burton, and Miss Lenora Fuller.) They signed that will in my presence. They requested me to witness the will. Brought it there and asked me to witness it; said this was their will. I did not read the will, but they'asked me to witness it. They at the same time asked my father to witness it, and both witnessed it at the same time and place. My father and I were present with each other and in the presence of tbe others when we witnessed it. I observed them at tbe time they signed tbe will and asked me to sign it. . . . Tbe name, Mrs. J. B. Thomas, as executrix in tbe will is in my bandwriting. I wrote it' in there at these old ladies\u2019 request, at tbe time it was signed; it is in my bandwriting in both places.\u201d\nOn cross-examination W. H. \"Warren testified: ... \u201cI cannot remember who was in tbe store tbe day tbey came there. I can remember these people.\u201d\n\u201cQ. All three at tbe same time? A. I can\u2019t say that; but I know one thing: tbey all signed it and my father and myself present. I cannot swear that all three came together. I cannot swear that all three signed it at tbe same time. I can swear that all three signed it at tbe same place. I don\u2019t remember which one came to my place first. I think two came together and one afterwards. That is my opinion. My father and I signed our names when they first came; we witnessed it on 16 November. I would not know the date except for the paper. I cannot pretend to tell the court and the jury which ones of the ladies came there together the first time. I saw all three sign it. I know their handwriting. I have seen them write before. I saw their writing a good many times. They brought letters to mail at the post office and did writing in the store, and did a good deal of business with me. They did not write a fine hand, but you could read it. The paper was lying on the counter when they signed it. The counter in my father\u2019s store. I don\u2019t remember which signed it first; I don\u2019t remember which signed it second; nor which one signed it third. My father and I signed it then and there. They brought the paper there and told us that it was their will and wanted us to witness it, and we did, and by request they asked me to put Mrs. J. B. Thomas\u2019 name in it. All three asked us to do it; asked us to witness the will.\n\u201cI don\u2019t remember that all three signed it at one time. I don\u2019t remember all signing it at one time, but I do remember they asked us to. sign it. \u00a5e seen them sign it. I don\u2019t remember about their sitting-in a chair. I went to the desk and got a pen and ink. When they signed it, they gave it to us and asked us to put it in the safe, and later they came and got it. We put our names on it, the 16th of November, I think that was the day. I don\u2019t know that they were looking at my pen when I put my name there. T do not know that they even saw the paper when I put my name to it; I do not know that they saw the will at the time I put my name on it. I do know it was in their presence, but I do not know whether they were looking straight at us or not; they asked us to witness it. My father put it in the safe. I don\u2019t know how long we kept it there. They came after it, but I don\u2019| know bow long it was before they came after it, and don\u2019t know wbicb one came after it. I remember they asked us to take care of it and we did, but I don\u2019t remember when they came for it and got it. No, sir I don\u2019t know which one came and got it. I don\u2019t know the year that the first old lady died. I can tell exactly at home.\u201d\nRedirect examination: \u201cAt the time my father and I witnessed the will the old ladies were right there in the store. Nothing there to keep them from seeing it. No obstruction between us. I saw them sign first. I signed after.\n\u201cQ. The certificate here is: \u2018Signed, sealed and published and declared by the said Bettie Barnwell, Sarah Burton and lenora Fuller to be their last will and testament in the presence of us and at their request and in the presence of each other, do subscribe our names as witnesses thereto,\u2019 is that what happened on that occasion?\n\u201cA. Bound to have been or I would not even have signed it if it had not been.\u201d\nRecross-examination: \u201cQ. Tou said awhile ago, you did not read it over?\n\u201cA. No sir. All I know is all three said it was their will. All three asked me to sign it. I did not know what was in there. I did not know what was 'on the paper.\u201d\nJ. L. \"Warren, the other subscribing witness, testified:\n\u201cI am the father of William Warren. Live at Hightower. Knew Miss Lenora Fuller, Mrs. Burton and Mrs. Barnwell. I have been knowing them practically all my life. I was engaged in business with my son in a store in 1911. These old ladies requested me to witness their will. (Paper handed to witness, and asked is that the paper?) A. Yes, sir, that is my signature. That is my signature, and the old ladies\u2019, all three of them.\n\u201cQ. So each and every one signed this will in your presence? A. Yes, sir; I do not think all three signed at the same time. Each one signed in my presence, and I witnessed it in their presence, I do not know that all three were there at the same time.\n\u201cQ. You do not say they were not, you just say you do not recollect it? A. I don\u2019t know, they said, T want you and Will to sign my will.\u2019 Each signed it in my presence and I witnessed it at their request.\n\u201cQ. The certificate says: \u2018Signed, sealed, published and declared by the said Bettie A. Barnwell, Sarah Burton and Lenora Fuller to be their last will and testament, in the presence of us, and at their request and in the presence of each other do subscribe our names as witnesses thereto\u2019- \u2014 Is that what happened there? A. Why, the best of my knowledge they did. That is my opinion. I would not have witnessed the will had I not thought so.\u201d\nThe substance of his weakened testimony is set forth in what he said on recross-examination: \u201cNo sir, I did not witness it but one time. Yes, sir, when the last one came my name was on there. I don\u2019t reckon she saw me put my name on there it was already on there. All three might have been there, but I don\u2019t think so. It has been a good long while ago.\u201d\nOn cross-examination, both subscribing witnesses to the will weakened as to whether all three were in the store at the same time, when they signed the will as witnesses. Ye do not set out all the evidence, but sufficient to show the conflict that the jury had to consider in arriving at a verdict.\nCaveators did not object to the introduction of the will in evidence, but did object to the validity of it.\nThe witnesses to the will who signed the same had to testify to what occurred some 13 years before. Naturally their recollection as to certain details, as brought out on cross-examination, but material to the validity of the will, were hazy and weakened by time. \"We think the evidence sufficient to be submitted to the jury. The court below, on this aspect of the case, properly placed the burden of the entire issue on the propounders to satisfy the jury by the greater weight of the evidence. The court charged the jury as follows:\n\u201cNow, in this connection the court charges you that it is not necessary that the testator should sign the will in the presence of the witnesses, acknowledgment is sufficient. It is not necessary that the testator request the witnesses to sign, request by attorney is sufficient, or the request may appear from the circumstances. The witnesses must sign in the presence \u25a0of the testators, and as a rule the testator must actually see or be in a position to see not only the witnesses, but the will itself at the time of the signing, and where he could see the backs of witnesses, not the paper, it is not a good attestation. It may be shown from the location of the objects, furniture in the room, etc., that the testator could have seen the witness who signed the will. The witnesses need not sign in the presence of each other.\u201d\nFrom a careful study of the charge of the court below, we think the issue of fact and the law arising thereon was carefully submitted to the jury, and the contention fairly given. We can find in law,\nNo error.", "type": "majority", "author": "Clarkson, J." } ], "attorneys": [ "P. W. Glidewell, T. J. Gold for propounders.", "John Hall Manning, Carroll & Carroll and W. B. Horton for caveators." ], "corrections": "", "head_matter": "In re Will of MISS LENORA FULLER, MRS. BETTIE A. BARNWELL and MRS. SARAH M. BURTON.\n(Filed 22 April, 1925.)\n1. Appeal and Error \u2014 Objections and Exceptions \u2014 Briefs \u2014 Rules of Court.\nIt is necessary that exceptions appearing in the record on appeal be mentioned in appellant\u2019s brief, with reason or argument to support them, to entitle them to be considered by the court, for otherwise they are taken as abandoned. Rule of Court, 185 N. C., 798.\n2. Wills \u2014 Execution\u2014Witnesses\u2014Statutes\u2014Signing by Tesiator.\nThe requirements of C. S., 4131, as to the signing of the witnesses to a will in the testator\u2019s presence and at his request, must he met in order to a valid will, and testimony of the witnesses to a joint will of three persons that each of them requested each witness to sign, who accordingly did so in the presence of each testator, and so situated in plain view that each of the testators could plainly see them sign, is sufficient, and it is unnecessary that all of the testators should have signed at the same time, but it is sufficient if they did so on different occasions, under the circumstances required by the statute.\n3. Same \u2014 Evidence\u2014Questions for Jury \u2014 Cross-Examination\u2014Burden of Proof.\nWhere the direct testimony of the witnesses to a will is sufficient for its validity under the provisions of our statute, C. S., 4131, and on cross-examination its force is weakened so as to leave a doubt of its sufficiency, the issue is for the determination of the jury, with the burden of proof on the caveators.\nAppeal by caveators from Finley, J., and a jury, at December Term, 1924, of Caswell.\nThe issue submitted to tbe jury and tbeir answer thereto is as follows:\n\u201cIs the paper offered by the propounders and every part thereof the last will and testament of Bettie A. Barnwell, Sarah M. Burton and Lenora Fuller? Answer \u2018Yes.\u2019\u201d\nUpon the verdict, the court below rendered the following judgment: \u201cNow, therefore, it is ordered and adjudged and d\u00e9creed by the court that the paperwriting offered by the propounders and every part thereof is the last will and testament of the said Sarah M. Burton, Bettie A. Barnwell and Lenora Fuller; and it is further ordered; adjudged and decreed by the court that the caveators pay the costs of this action to be taxed by the clerk.\u201d\nThe caveators excepted and assigned error to the foregoing judgment, made numerous other exceptions and assignments of error and appealed to the Supreme Court. The other necessary facts and the 'material assignments'of error will be considered in the opinion.\nP. W. Glidewell, T. J. Gold for propounders.\nJohn Hall Manning, Carroll & Carroll and W. B. Horton for caveators." }, "file_name": "0509-01", "first_page_order": 587, "last_page_order": 593 }