{ "id": 8627323, "name": "In the Matter of The Will of HUBERT E. ROBERTS, Deceased", "name_abbreviation": "In re Will of Roberts", "decision_date": "1960-01-29", "docket_number": "", "first_page": "708", "last_page": "719", "citations": [ { "type": "official", "cite": "251 N.C. 708" } ], "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": "86 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608169 ], "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0001-01" ] }, { "cite": "38 A.L.R. 2d 486", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "155 S.E. 876", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N.C. 782", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615814 ], "opinion_index": 0, "case_paths": [ "/nc/199/0782-01" ] }, { "cite": "66 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621109 ], "opinion_index": 0, "case_paths": [ "/nc/234/0228-01" ] }, { "cite": "38 A.L.R. 2d 477", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "53 Am. Dec. 597", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "15 Pa. 281", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 408707 ], "opinion_index": 0, "case_paths": [ "/pa/15/0281-01" ] }, { "cite": "78 S.E. 72", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "162 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270590 ], "opinion_index": 0, "case_paths": [ "/nc/162/0213-01" ] }, { "cite": "63 S.E. 1025", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "150 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270562 ], "opinion_index": 0, "case_paths": [ "/nc/150/0245-01" ] }, { "cite": "95 S.E. 769", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "175 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659797 ], "opinion_index": 0, "case_paths": [ "/nc/175/0420-01" ] }, { "cite": "67 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622236 ], "opinion_index": 0, "case_paths": [ "/nc/234/0365-01" ] }, { "cite": "88 S.E. 785", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "171 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270967 ], "opinion_index": 0, "case_paths": [ "/nc/171/0468-01" ] }, { "cite": "72 S.E. 1072", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "157 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658135 ], "pin_cites": [ { "page": "435" } ], "opinion_index": 0, "case_paths": [ "/nc/157/0429-01" ] }, { "cite": "98 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626166 ], "opinion_index": 0, "case_paths": [ "/nc/246/0322-01" ] }, { "cite": "86 S.E. 807", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "170 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657156 ], "opinion_index": 0, "case_paths": [ "/nc/170/0064-01" ] }, { "cite": "56 S.E. 2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629258 ], "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0252-01" ] } ], "analysis": { "cardinality": 1055, "char_count": 27081, "ocr_confidence": 0.483, "pagerank": { "raw": 1.4932923034184269e-07, "percentile": 0.663432115154204 }, "sha256": "0ea22211ddacbe9bf394f83ed73310c3b4f698fba57aeedc6985568e2e3310b4", "simhash": "1:42ded743802ed257", "word_count": 4758 }, "last_updated": "2023-07-14T17:26:21.126874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Higgins, J., took no part in the consideration or decision of this case." ], "parties": [ "In the Matter of The Will of HUBERT E. ROBERTS, Deceased." ], "opinions": [ { "text": "Bobbitt, J.\nThree witnesses testified that all writing on the four sheets comprising Exhibit A, except the signatures of Claude Sawyer and Eloise Ball on Sheet 4, was in the handwriting of Hubert E. Roberts, and a witness testified that Exhibit A was found among the valuable papers and effects of Mr. Roberts in the inner compartment of his safe.\nTwo witnesses testified that the words \u201cWill of H. E. Roberts,\u201d appearing on the envelope, Exhibit B, referred to below, were in the handwriting of Hubert E. Roberts. This envelope was not offered for probate.\nClaude Sawyer, aged 69, testified: He had known Mr. Roberts \u201cabout all of his life\u201d and, in the period before his death, had seen him \u201cmost every day.\u201d In response to Mr. Roberts\u2019 request, he \u201cwent back of the prescription counter.\u201d Mr. Roberts stated: \u201cI want you to witness my will.\u201d Mr. Roberts \u201csigned it, dated it, and handed me his pen, and I signed it over here on the left.\u201d Mr. Sawyer identified Mr. Roberts\u2019 signature 'and his own signature on Sheet 4 of Exhibit A. On \u2022cross-examination, Mr. Sawyer testified: He and Mr. Roberts were the only persons present. \u201cThere were several sheets ... as many as three or four sheets.\u201d \u201cHe (Mr. Roberts) laid all of the sheets down together. That\u2019s the one (referring to Sheet 4) I signed. He did not read his will to me.\u201d\nMrs. Eloise Ball Riddle testified: She (then Eloise Ball) worked for Mr. Roberts from May, 1950, through October, 1951. She identified her signature and the signature of Mr. Roberts on Sheet 4 of Exhibit A. On one occasion, while she was working in the drugstore, Mr. Roberts acknowledged before her his signature on Sheet 4 of Exhibit A. \"... I could not say that I remember signing his will, because I signed several papers for him and; witnessed his signature, and he did not tell me I was witnessing his will.\u201d The incident took place \u201cin the prescription room of the drugstore.\u201d No one was present other than she and Mr. Roberts.\nA witness testified that Robert Davis, husband of Mrs. Vena C. Davis, was a first cousin of Hubert E. Roberts; and that Mrs. Garfield Davis, the mother of Robert Davis, was \u201cthe only living aunt\u201d of Hubert E. Roberts.\nIf the four sheets constitute one complete and integrated document, the evidence was positive and uncontradicted that Exhibit A was executed in accordance with statutory requirements as an attested will and as a holographic will. G.S., Yol 2A, Recompiled 1950, \u00a7 31-3.\nSheet 1 bears the date, \u201c7/14/5,\u201d and each of Sheets 2, 3 and 4 bears the date, \u201c7/14/51,\u201d in the handwriting of Hubert E. Roberts. Mrs. Riddle did not work for Mr. Roberts after October, 1951. While it does not appear that Chapter 1098, Session Laws of 1953, now G.S. 31-1 et seq., effects any statutory change relevant to the case sub judice, it is noted that Section 16 of said 1953 Act provides: \u201cThis Act does not have the effect of rendering invalid any will executed or probated prior to July 1, 1953.\u201d\nThe fact that Mr. Sawyer and Mrs. Riddle signed as witnesses on separate occasions is immaterial. Both signed as witnesses in the presence of Mr. Roberts. It is not required that subscribing witnesses sign in the presence of each other. In re Will of Franks, 231 N.C. 252, 255, 56 S.E. 2d 668, and cases cited.\nCaveators contend the evidence is not sufficient to support a finding that the four sheets constitute a single document executed by Hubert E. Roberts as his last will and testament; but, if considered sufficient for submission to the jury, the evidence did not warrant the peremptory instruction.\nThe only testimony as to the circumstances under which the four sheets comprising Exhibit A were found and the condition thereof when found is the testimony of Charles Mashburn. Mr. Mashburn, an attorney at law and resident of Marshall, had been employed by Mrs. Vena C. Davis to represent her in connection with the Hubert E. Roberts' estate.\nOn direct examination, Mr. Mashburn testified, in substance, as follows: Mr. Roberts had, in his drugstore, \u201ca large steel safe.\u201d The outer door had a combination lock. An inner compartment was locked by key. On or about November 29, 1956, two days after Mr. Roberts\u2019 death, Mr. Mashburn, in company with Mrs. Vena C. Davis and Mrs. Clyde Roberts, went to the safe. The inner compartment was locked. Mr. Mashburn obtained the key, which was on Mr. Roberts\u2019 key ring, and opened the inner compartment. Mr. Mashburn found, \u201cin the inner locked compartment of the safe,\u201d along with insurance policies, Series E. Bonds, keepsakes of Mr. Roberts\u2019 son, receipts, etc., the envelope, Exhibit B, bearing the words, \u201cWill of H. E. Roberts,\u201d which contained, \u201cfolded together,\u201d the four sheets comprising Exhibit A. In the outer portion of the safe, there were \u201ca large group of narcotics and various things a duggist would keep locked up.\u201d\nOn cross-examination, Mr. Mashburn testified, in substance, as follows:\nHe knew Mr. Roberts but was not his attorney. He had heard Mr. Roberts had been sick and \u201cin the hospital in Asheville sometime prior to his death.\u201d He did not know whether Mrs. Davis was in charge of the store in Mr. Roberts\u2019 absence. He did not recall whether the outer door of the safe was open or closed, locked or unlocked; and he was not sure whether Mrs. Davis gave the key to him or whether it was in the store. The four sheets of paper, Exhibit A, \u201cwere in the same condition when (he) found them that they are in now.\u201d They were not fastened together, \u201c(j)ust folded together.\u201d\nAdditional testimony of Mr. Mashburn, on cross-examination, was as follows: \u201cI am not sure whether the envelope marked EXHIBIT B is in the same condition as when I found it in the safe. I am not positive as to whether or not the envelope had been opened. However, this piece of Scotch tape was on there at the time. I don\u2019t recall whether or not the cross ink marks on the back were on there at the time. I don\u2019t recall whether it had been split open at the top. It is split open now. I would not know whether it had been previously opened prior to the Scotch tape being put on it. I could not tell from this whether or not the Scotch tape is over the ink cross-marks. I don\u2019t believe the will was read at that time in the drugstore. I believe it was carried to Mr. Roberts\u2019 office or to the Clerk of Court\u2019s office. I believe that I took the will out of the safe and carried it to Mr. Roberts\u2019 office before the Clerk ever got there. I don\u2019t recall that we notified the Clerk to come to the drugstore. I don\u2019t recall that the Clerk did go to the drugstore. I don\u2019t recall what the condition of the envelope was when the Clerk went to Mr. Roberts\u2019 office. ... I believe that I first read the will in Clyde Roberts\u2019 office.\u201d\nInspection of (original) Exhibit B discloses: It is a white stamped envelope, size i1/^\" by 9%\"; and on the front, in the upper left comer, are the printed words: \u201cAfter 5 days, return to ROBERTS PHARMACY, Box 2, MARSHALL, N. C.\u201d In the upper right corner, part of the envelope itself, is three cents uncancelled United States postage. The words, \u201cWill of H. E. Roberts,\u201d appear on the front. The flap is now firmly sealed to the back of the envelope. It appears that, apart from the glue or other adhesive on the flap, it was sealed by Scotch tape, a portion of which remains, over the line where the edge of the flap contacts the back of the envelope. Crossing isaid line, there -are three \u201cX\u201d marks, in ink. While there is no evidence relating thereto, it may be inferred from the physical appearance that these \u201cX\u201d marks, parts of which are obscured, were made prior to the sealing of the envelope with Scotch tape. It appears that the top of the envelope, now open, was opened by cutting or tearing or both.\nInspection of (original) Exhibit A discloses: The four sheets are now fastened together by a staple in the upper left comer. Near this staple, on each of the four sheets, there are several boles, ostensibly made by stapling or attempted stapling. (Note: None of ithe evidence relates to these holes or as to when and under what circumstances the four sheets were fastened by the staple now holding them together.) All handwriting on Sheets 1, 2 and 4, and also the handwriting on the front of the envelope, is in light blue ink. As to Sheet 3, the date, \u201c7/14/51,\u201d the words \u201cI give to Lucille Roberts,\u201d and the words, \u201cI give to Julia Roberts,\u201d are in light blue ink. All other handwriting on Sheet 3 is in darker blue ink.\nThe right to dispose of property by will is statutory. Peace v. Edwards, 170 N.C. 64, 86 S.E. 807; In re Will of Crawford, 246 N.C. 322, 98 S.E. 2d 29. \u201cThe provisions of the statute are, of course, mandatory and not directory, and therefore there must be a strict compliance with them before there can be a valid execution and probate of a holograph script as a will; but this does not mean that the construction of the statute should be so rigid and binding as to defeat its clearly expressed purpose. It must be construed and enforced strictly, but at the same time reasonably.\u201d In re Will of Jenkins, 157 N.C. 429, 435, 72 S.E. 1072; Alexander v. Johnston, 171 N.C. 468, 88 S.E. 785.\nUpon the issue devisavit vel non, the burden of proof was on the propounders to establish, by the greater weight of the evidence, that the paper writing offered for probate, Exhibit A, was executed in compliance with requirements of G.S. 31-3. In re Will of Morrow, 234 N.C. 365, 67 S.E. 2d 279; In re Will of Chisman, 175 N.C. 420, 95 S.E. 769; In re Will of Hedgepeth, 150 N.C. 245, 63 S.E. 1025.\nThis Court, opinion by Allen, J., in In re Swaim\u2019s Will, 162 N.C. 213, 78 S.E. 72, Ann. Cas. 1915A 1207, which involved the probate of two separate sheets as an attested will, quoted, with approval, from the opinion of Chief Justice Gibson in Wikoff\u2019s Appeal, 15 Pa. 281, 53 Am. Dec. 597, the following: \u201cIt is a rudimental principle that a will may be made on distinct papers, as was held in Earl of Essex\u2019s case, cited in Lee v. Libb, 1 Show. 69. It is sufficient that they are connected by their internal sense, by coherence or adaptation of parts.\u201d\nThe general rules have been stated as follows: \u201cA will need not be written entirely on one sheet of paper, but may be written on several separate sheets, even though there is confusion in the order of their arrangement, provided the sheets are so connected together that they may be identified as parts of the same will. A valid will may be written on several sheets of paper without attaching them where the principle of integration may be applied. While connection by the meaning and coherence of the subject matter is sufficient, as physical connection by mechanical, chemical, or other means is not required, although it is sufficient when made, in the absence of such physical connection, the papers must be identified as one will by their internal sense, by coherence, or adoption of the several parts. Where there is sufficient credible proof of the identity of disconnected sheets propounded as one will, neither the physical nor coherent rule of attachment is applicable.\u201d 94 C.J.S., Wills \u00a7 162; 57 Am. Jur., Wills \u00a7 224; Thompson on Wills, Third Edition, \u00a7 105; Page on Wills, Lifetime Edition, \u00a7 242; Annotation: \u201cValidity of will written on disconnected sheets,\u201d 38 A.L.R. 2d 477, where many decisions, involving variant factual situations, are discussed.\nWhere a will is written on two or more separate sheets, the statute, G.S. 31-3, does not require that they be physically attached or that the signature of the testator appear on each sheet. It is sufficient if the signature of the testator appears in any part of the will. In re Will of Williams, 234 N.C. 228, 66 S.E. 2d 902, and cases cited. In Alexander v. Johnston, supra, the signature of the testatrix did not appear on the sheet containing the dispositive provisions but the words, \u201cJulia W. Johnston Will,\u201d were on the \u201clightly sealed\u201d envelope in which the sheet was found; and the sheet and envelope were established as the holographic will of Julia W. Johnston.\nIn In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876, a holographic will consisting of two sheets, folded together but not attached, was established. The two sheets were found in a sealed envelope on which appeared the words, \u201cMy Will,\u201d in the handwriting of the testatrix. This Court, rejecting caveators\u2019 principal contention, held that an otherwise valid holographic will was not invalidated 'because printed matter, in the nature of a letterhead, appeared on each of the two sheets.\nIn the Swaim case, which involved an attested will, the bases upon which the two sheets were held to constitute a single document were these: (1) The testimony of Mr. Gwaltney, the draftsman, \u201cestablished the fact that the two sheets were written at the same time, that both were read to the testator as his will, and were present at the time of the execution . . .\u201d (2) \u201c. . . the papers themselves bear intrinsic evidence that, while separate, they were tacked together in the mind of the testator,\u201d it appearing that the fourth page of the first sheet, \u201cconcludes in the middle of an item of the will and a description of a tract of land, which is concluded on the first page of the second sheet, and both sheets are in the handwriting of the same person.\u201d In the Lowrance case, which involved a holographic will, there was no verbal sequence, that is, \u201cthe finishing on one sheet of a sentence begun on another,\u201d 38 A.L.R. 2d 486, but 'both sheets were in the handwriting of the testatrix, folded together, and found in the sealed envelope.\nIn an attested will, the primary significance of such verbal sequence is that it tends to identify the unsigned sheets as constituent parts of the testator\u2019s will. In a holographic will, such verbal sequence is of less significance; for, in such case, the relationship between the testator and the writing is established by the fact that each of the sheets is in the handwriting of the testator. Alexander v. Johnston, supra. Here, each of the four sheets comprising Exhibit A is identified by Hubert E. Roberts in his own handwriting. True, the four sheets are not connected by verbal sequences; but the provisions of each sheet do disclose unequivocally that such sheet was intended by the writer (Hubert E. Roberts) to be a constituent part of his will.\nThe intrinsic evidence that the four sheets are constituent parts of a single document includes the following: (1) Each of the four sheets bears the same date. (2) Each sheet, being in the handwriting of Hubert E. Roberts, is unmistakably identified. (3) The four sheets, when found, were folded together; and the originals indicate plainly that the crease marks, where folded, are identical on all four sheets. (4) The four sheets, considered together, disclose a coherent and complete testamentary disposition of his estate.\nIt is idle to speculate as to why the writing on Sheet 3 is partly in light blue ink and partly in darker blue ink. The significant fact is that all is in the handwriting of Hubert E. Roberts. Moreover, it is noteworthy that the date, \u201c7/14/51,\u201d is in light blue ink, the same as on the other sheets and on the envelope.\nIt is noted that Mrs. Vena C. Davis was a< principal and the residuary legatee (Sheets 1 and 4) under the terms of Exhibit A. It is further noted that her interest as residuary legatee (Sheet 4) is not increased, but is substantially impaired, by the dispositive provisions on Sheets 2 and 3.\nEven so, caveators contend that \u201cit is impossible to tell whether or not any sheets had been removed.\u201d In their brief, they refer to the holes now appearing in the upper left corner of each sheet, ostensibly made by staples (later removed) or by attempted stapling, as indicating -that one or more sheets, once a constituent part of Exhibit A, had been removed. Absent evidence with reference thereto, we do not think such inference may be reasonably drawn from the staple holes now appearing thereon.\nCaveators contend it appears that the envelope, Exhibit B, had been opened 'before Mr. Mashburn found it. Conceding that the envelope, Exhibit B, had been opened before it was found by Mr. Mash-burn (for there is no evidence it was then sealed), the question as to who opened it and under what circumstances is not answered by the evidence. Can it be reasonably inferred that some person other than the testator opened the envelope and withdrew therefrom another sheet that was a constituent part of Mr. Roberts' will? We think not.\nBearing further on caveators\u2019 said contentions, Mr. Sawyer\u2019s testimony is to the effect that when he witnessed Mr. Roberts\u2019 will there were \u201cas many as three or four sheets.\u201d This testimony, competent under In re Swaim\u2019s Will, supra, and admitted without objection, while it does not specifically identify Sheets 1, 2 and 3, does dispel the idea that there were more than four sheets and that one or more had been removed. In short, we do not think a reasonable inference may be drawn from the evidence that one or more sheets, other than the four sheets comprising Exhibit A, ever constituted constituent parts of Mr. Roberts\u2019 will.\nTrue, it would seem that Mr. Mashburn might have taken more careful notice of what occurred .on the occasion Exhibit A was found in the inner compartment of Mr. Roberts\u2019 safe. This is especially true in the light of .hindsight. Even so, this is a proceeding in rem; and the solemn act of Hubert E. Roberts may not be nullified on the ground that Mr. Mashburn was unable to answer certain questions as to what he might have observed. It may be conceded that the cross-examination of Mr. Mashburn had a bearing upon the credibility of his testimony; but, under a peremptory .instruction, the credibility of the testimony is for determination by the jury. Nothing in the record indicates that counsel for caveators did not argue or have opportunity to present their arguments as to the credibility of the testimony prior to the court\u2019s submission of the issue to the jury for its determination.\n\u201cThe rule is that where all the evidence bearing on an issue points in the same direction and justifies as the single inference to be drawn therefrom an answer in favor of the party having the burden of proof, an instruction to find in support of such inference if the evidence is found to be true, will be upheld. This is a peremptory instruction, as distinguished from a directed instruction.\u201d Peek v. Trust Co., 242 N.C. 1, 11, 86 S.E. 2d 745, and cases cited.\nThe only reasonable conclusion to be drawn from the facts as shown by the testimony and by the documentary evidence is that the four sheets comprising Exhibit A constitute the last will and testament of Hubert E. Roberts. Hence, the peremptory instruction was appropriate.\nNo error.\nHiggins, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Uzzell & Dumont and A. E. Leake for caveators, appellants.", "J. Y. Jordan, Jr., H. Kenneth Lee and Robert P. Smith for pro-pounder The Shriner\u2019s Hospital for Crippled Children, appellee.", "Mashburn & Huff, by Joseph B. Huff, and Clyde M. Roberts for other propounders, appellees." ], "corrections": "", "head_matter": "In the Matter of The Will of HUBERT E. ROBERTS, Deceased.\n(Filed 29 January, 1960.)\n1. Wills \u00a7 7\u2014\n\u25a0A dispositive paper writing signed by testator and witnessed at bis request and in bis presence by two witnesses, although they signed it on separate occasions, is sufficient to constitute the instrument an attested will, it not being required that the witnesses sign in the presence of each other.\n2. Wills \u00a7 8\u2014\nAn instrument in the handwriting of testator, disclosing dispositive intent, and found after his death in his safe, is sufficient to constitute ithe instrument a holographic will, and the presence of a printed letterhead at the top of the page is immaterial.\n3. Wills \u00a7\u00a7 6, 8\u2014\nWhile the provisions of the statute in regard to the execution of a will are mandatory and not directory and must 'be strictly complied with, the statutory provisions must at the same time be reasonably construed so as to effectuate the intent of the statute and not to defeat it.\n4. Wills \u00a7 22\u2014\nThe burden is upon propounder to establish by the greater weight of the evidence that the paper offered for probate was executed in compliance with statutory requirements. G.S. 31-3.\n5. Wills \u00a7\u00a7 6, 8\u2014\nIt is not required that a will be on a single sheet of paper or that the sheets constituting the instrument be physically attached, or that the signature of the testator appear on each sheet, but it is sufficient if the evidence discloses that the separate sheets constitute but a single instrument. In a holographic will sequence of the language is of less significance than in an attested will since puoof of the handwriting of the testator and his signature establishes the dispositive provisions as a will.\n6. Wills \u00a7 24\u2014 Evidence held sufficient to warrant peremptory instruction as to validity of holographic will.\nEvidence tending to show that four sheets, bearing the same date, each sheet being in the handwriting of testator, were found folded together, \u25a0that the folds of all four sheets coincided, and that the four sheets considered together disclosed a coherent and complete testamentary disposition of testator\u2019s estate, and that his signature appeared at the end, is held sufficient, notwithstanding that a few words on one sheet, also in testator\u2019s handwriting, were in a different inis, to warrant a peremptory instruction by the court that if the jury found by the greater weight of the evidence the facts to be as all the evidence tended to show to \u2022answer the issue in the affirmative, caveators having offered no evidence in 'support of their contentions to the effect that it was impossible to tell whether any sheets had been removed.\n7. Trial \u00a7 29\u2014\nWhen all the evidence justifies but a single inference in favor of the party having the burden of proof, an instruction to find the issue in the affirmative if the jury finds the evidence ito toe true will be upheld; The distinction is noted between a directed verdict and a peremptory instruction.\nHiggins, J., took no part in the consideration or decision of this case.\nAppeal by caveators from Farthing, J., March Term, 1959, of Madison.\nThe jury having answered the issue devisavit vel non in favor of the propounders, it was adjudged that the paper writing, and every part thereof, theretofore probated in common form and offered in evidence as Exhibit A, is the last will and testament of Hubert E. Roberts, deceased.\nHubert E. Roberts died November 27, 1956, at the age of 61 or 62. On November 30, 1956, Exhibit A was probated in common form and administratrices c. t. a. were appointed.\nHubert E. Roberts had been married but left no lineal heirs. His wife had died in 1947. The only child, a son, had been killed in 1945 while serving in the TJ. S. Air Force.\nThe caveators are twelve collateral heirs, first and second cousins, of Hubert E. Roberts. One resided in Marshall, N. C., four resided in other sections of North Carolina; and the remaining seven resided either in Washington, D. G, or in Maryland.\nThe propounders are Mrs. Vena C. Davis, Hattie T. Teague and Julia R. Elam, as administratrices c. t. a. and individually, and Lucille Robeits and Grace Conner, who filed a joint answer to the caveat, and The Shriner\u2019s Hospital for Crippled Children, a corporation, for which a separate answer was filed.\nAll interested persons were citedt and made parties to the proceedings.\nExhibit A (the original was filed here for inspection) consists of four sheets, identified in the evidence as Sheets 1, 2, 3 and 4. The four sheets are the same size, 8%\" by 11\", the same kind of paper and bear this letterhead: \u201cROBERTS PHARMACY \u2014 Established 1882 \u2014 The Rexall Store \u2014 Phone 6 \u2014 Marshall, N. C.\u201d The writing on each of the four sheets is set forth below:\n\u201cSheet 1\n\u201c7/14/5\n\u201cLast will and testament.\n\u201cI Hubert E. Roberts of Marshall Madison County, N. C. Being of sound mine and capable of executing a valad deed or contract do make, Publish and declare this to be my last will and testament Hereby revoking all other wills or codicils herefore made by me.\n\u201cI give to my best friend and helper Mrs. Vena Davis, $5000.00. The house on hill st. known as the Church house. The stock and fixtures of Roberts Pharmacy. The two pictures in Dining room, The girl in prison and the Driving of the cows.\n\u201cI give to my cousin Mrs. Hillard Teague $5000.00. The two companion pictures in hall The Deers.\n\u201cSheet 2\n\u201c7/14/51\n\u201cI leave in care of Marshall Presbitiran church $5000.00 for the Interest to be used to keep the Roberts Cemetary mowed and in repair. This should be done once weekly during sumer, for \u25a0this trouble I give the Church 5% of the Interest.\n\u201cI leave in care of the Shrine Hospital Greenville, S. C., for the period of 25 years, the rent from the Roberts Pharmacy building and the Dodson building on Main St. This to be collected by them and the building to be kept in repair and first class condition and not to be rented to Jews. A sealed letter will be left with this will to be opened in 25 yrs.\n\u201cSheet 3\n\u201c7/14/51\n\u201cI give to Lucille Roberts: The lot on Roberts Road. The Rector house to Hill St. Also picture head in bed room upstairs. \u201cI give to Julia Roberts Elam $5000.00 and one cluster diamond ring.\n\u201cMrs. 0. C. Rector. One picture the 3 horse Heads, one Diamond ring, vase in Hall.\n\u201cMrs. J. H. Sprinkle, One diamond Ring, one chair with arms made by my Grandfather, The Long Pitcher in dining room.\n\u201cSheet 4\n\u201cMy home on the hill will go to Mrs. Bob Davis as long as she will keep Frank Fowler\u2019-s room as is today and all the ruddunts of my estate to her Mrs. Bob Davis.\n\u201cI leave Miss Grace Connor $1000.00\n\u201c(s) H. E. Roberts\n7/14/51\n\u201cWitness\n(s) Claude Sawyer\n(s) Eloise Ball\u201d\nThe caveat alleged (a) undue influence by Mrs. Vena C. Davis, and (b) mental incapacity, but no evidence was offered to support these allegations. The caveat alleged further: \u201c(c) That said purported will is not signed in the handwritting of the deceased. That said several pages of said will were not written prior to the affixing of the signature. That said purported will hadi been opened by others than the deceased and tampered with and altered.\u201d\n\u201cMrs. Vena C. Davis\u201d and \u201cMrs. Bob Davis\u201d are one and the same person.\nThe caveators offered no evidence. When the propounders had offered their evidence, the caveators rested and moved for a directed verdict. Their motion was denied. The court submitted the issue devisavit vel non to the jury under this (peremptory) instruction: \u201c ... if you are satisfied from the evidence that you have heard, that the evidence is true, and find the facts to be as the evidence tends to show in this case, you will answer the issue submitted to you YES. If you fail to so find, you will answer the issue NO.\u201d\nPropounders\u2019 evidence will be set forth in the opinion.\nOn appeal from said judgment, the caveators assign as error (1) the denial of their motion for a directed verdict and (2) the court\u2019s said peremptory instruction to the jury.\nUzzell & Dumont and A. E. Leake for caveators, appellants.\nJ. Y. Jordan, Jr., H. Kenneth Lee and Robert P. Smith for pro-pounder The Shriner\u2019s Hospital for Crippled Children, appellee.\nMashburn & Huff, by Joseph B. Huff, and Clyde M. Roberts for other propounders, appellees." }, "file_name": "0708-01", "first_page_order": 752, "last_page_order": 763 }