Doe ex dem. of Galloway v. Yates, 12 N.C. 296, 1 Dev. 296 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 296, 1 Dev. 296

Doe ex dem. of Hosea Galloway et al. v. Roe & Peter Yates,

From Beaufort.

The probate of a will, under the act of 1784, sec. 5, is good, if the place of its deposit be proved by one witness only.

Ejectment, tried before Donneel, Judge, on the last Fall Circuit. The lessors of the Plaintiff claimed by descent from Thomas Fates; the Defendant, as bis devisee, and the only question was, whether the will was properly proved. The Jury returned a special verdict, the malerial fact of whidi was, the probate of f!¿e will of Thomas Fates, which was as follows: “Michael Hill, George Hill, “ and Terence Delaney, being introduced to prove the “ same, who being duly sworn, Michael Hill declared on “ oath, that he was well acquainted wit!» the handwrit-6S ing of Thomas Fates, deceased ; that lie verily believed the paper purporting tobe the will and testament of said Thomas Fates, was in the proper Iiand- “ writing, as also the- signature of the said Thomas “Fates; that after the death of said Thomas Fates, he “ was at the house of said Thomas Fates, and Rachel “ Fates, the widow of said deceased, brought the will to “ him, taking it out of a chest, in which he believes the “ deceased usually kept his valuable papers.” The other two witnesses only deposed to the handwriting of the testator, and said nothing of the place in which the paper was found. If the will was sufficiently proved, the verdict was to be entered for the Defendant; if not, for the lessors of the Plaintiffs.

Upon this verdict, his honor the presiding Judge, gave judgment for the Defendant, from which the lessors of the Plaintiff appealed.

The cause was submitted, without argument, by Gas-ton and Hogg, for the lessors of the Plaintiffs, and by Badger, for the Defendant.

Hare, Judge

It appears to me, that the judgment given in the Superior Court, upon the special verdict, was correct. The act of 1824, (BctJ. c. 225,) requires that the signature and handwriting of the testator should be proved by three witnesses. Here this has been done. Tiie other circumstances attending the probate, such as with whom the will was deposited for safe-keeping, or where it was found, are left by the act to be established by the same evidence that is ordinarily used in other cases. To establish these, three witnesses are not indispensable ", tlie testimony offered was relevant and pfo-por, and if believed, sufficient to authorise the probate.

I’thcrefore think, the judgment of the Superior Court. should be affirmed.

Pee Curiam. — Judgment affirmed.