Den on Demise of Battle v. Speight, 32 N.C. 459, 10 Ired. 459 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 459, 10 Ired. 459

DEN ON DEMISE OF JAMES L. BATTLE & AL. vs. JOHN F. SPEIGHT.

Whether a re-publication of a will can be proved by parol evidence of the declarations of the testator, merely, is matter of great doubt.

At all events the evidence should shew a clear determination on the part of the testator to republish.

Appeal from the Superior Court of Law of Edgecombe County, at the Fall Term 1849, his Honor Judge Battle presiding.

After the decision of this case at December term 1848^ (see 9th Ired. 288,) it came on for trial a second time, when the following facts were agreed : That Louis D. Wilson, then of the town o£ Tarborough, made his will in these words: ‘Tn the name of God : Amen. I, Louis D. Wilson do, this 26th day of May 1833, make this my last will and testament. First: I give to my sister Mary, the sum of five hundred dollars. Secondly : I lend to my sister Nancy, the land and plantation inherited from my father and all my negroes ; and after the death of my sister Nancy, to her surviving children equally. Thirdly: I give to the Chairman of the County Court of Edgecombe and his successors in office the residue of my estate, both real and personal, for the use and benefit of the poor, (the paupers.) of said County, to be appropriated and managed under the supervision of the Justices of the County: Fourthly : I give my town lots, Nos. 27 and 28, to Eliza Cotten, now Eliza Thompson:” And that the paper was written and signed by the testator; and, after his death, was duly proved in November 1S47, as his will, passing both personal and real estate : that the testator’s sisters,Mary and Nancy, and Eliza Thompson, died several years before 1847, and that the testator knew, that they were dead : that the testator, having become an officer in the army of the United States destined for Mexico, was, in the month of July 1847, making arrangements preparatory to his departure on the next day, and was at his own house in Tarborough, looking over a large collection of miscellaneous papers, spread out before him ; and that, whilst he was so engaged, a gentleman called on him, but the testator continued his examination of the papers, and in the midst of it, on taking up one of the papers, the testator made a slight exclamation, which attracted the attention of the visitor, and then the testator read the paper silently, and threw it to the visitor without offering a word, but proceeded in the examination of his papers : that the visitor silently read the paper (which was the will above set forth) and said to the testator, ‘■Is this the only will you have?”and the testator replied, “That’s all, sir whereupon the visitor handed back the paper and said to the testator, “All the persons to whom you have given property are dead,” and the testator rejoined, *'yes;” and nothing more was then said on the subject: that, on the morning of the next day, the testator said to several persons, that he had been so busy that he had not had time to write his will, and asked one of them, whether a will made in Mexico would be valid, and it was concluded that it would be : that, in the evening of that day, the testator departed and went to Rocky Mount, in order to take the Rail Road for Wilmington on his way to Mexico; and that, upon getting to Rocky Mount, the testator remarked to a friend that he had been writing almost incessantly during the week past, and yet had not written the most important document; and, on the succeeding morning, the testator mentioned to the same friend, that he had not written the document, but he would do so as soon as he should get to Mexico — not saying at either time, what kind of document it was, to which he alluded : that on that day the testator proceeded on his journey, and soon sailed for Vera Cruz, and that he was taken very sick on the voyage and died within a few days after he landed.

The premises mentioned in the declaration are the lots in Tarborough devised to Eliza Thompson, and a tract of land, which the testator bought, between the years 1833 and 1847 ; and the lessors of the plaintiff are the testator’s heirs at. law.

It was agreed, that, if, in the opinion of the Court, the foregoing facts and conversations did not amount in law to a second republication of the said will in the year 1847, there should be a judgment for the plaintiff for all the premises ; and if the Court should be of opinion that they did amount to such republication, then there should be a judgment for the plaintiff or the defendant, for such parts of the premises, as the Court should think them respectively entitled to.

The Court held, that there had been no republication of the will and gave judgment on the case agreed for the plaintiff for all the premises ; and the defendant appealed.

■ B. F. Moore, for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

The return of this case has presented to the attention of the Court a second time the question, whether the republication of a dated holograph will, lodged and found as prescribed in the act of 1784, can be established, by parol proof of declarations, merely, of the testator. It has received much consideration, and it is owned, that the more it has been reflected on, the more questionable the affirmation of the proposition seems to be. Republication makes a will operate from the period of the republication, as if it had been then executed ; so as, ‘for example, to pass land acquired between the ori« ginal execution and the republication. Then, to allow of a republication by verbal declaration simply is, in effect, to give another date to the instrument, so as, by means of parol evidence of such declarations, to make it pass land acquired up to such new date, or, in other words, to render it to that extent a different instrument from what it purports on its face to be. It may be, that, from necessity, such evidence of a publication or republication of wills of this kind must be competent, in order to show that the party deceased was treating it. as his complete d will. But it is, obviously, dangerous evidence, and it may defeat the policy of the acts, in requiring something more than words to constitute either a publication or a revocation of a will. The Court, however, declines deciding the point, choosing to leave it open to discussion whenever it shall be essential to rights in controversy. It is not so in the present case ; for. if evidence of this kind be competent at all, it is clear that the declarations of this testator fall short of showing the slightest intention to publish this paper as a will of July 1847, as contradistinguished from one of May 2Gth, 1833. There is not a single expression among those proved, which tends to establish any purpose of republication. On the other hand, every thing he said tends to ihe contrary ; and it appears plainly that he was dissatisfied with ir,, as a will, in the slate ol things then existing, and meant to make another. lie could not, therefore, have intended then to republish this paper ; and, although, by virtue of the act against parol revocations, it remained in force, notwithstanding the testator’s dissatisfaction, yet his expressed wish and design to make another will furnishes a conclusive argument against the supposition, that this will was intended to be republished. The premises sued for descended, therefore, to the heirs .at lawr, and the judgment is affirmed.

Per Curiam.

Judgment affirmed.