Gunter v. Gunter, 48 N.C. 441, 3 Jones 441 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 441, 3 Jones 441

JOSEPH GUNTER vs. ABNER GUNTER.

An executor, before tbe enactment of the Revised Code, could not be a witness in favor of the will, even by renouncing and releasing his interest, and he is still incompetent as to any will that was made before January, 1856, when that Code went into operation.

Issue of devismit vel non, tried before Pick, Judge, at the last Superior Court of Chatham.

The propounders offered the script as the last will and testament of one Elizabeth Straughan.

The will purported to bear date in June, 1854, and the decedent died in the month next following.

There were two witnesses to the will, one of whom, William G. Harris, was named the sole executor therein.

At November session of the County Court of Chatham, the said William G. Harris, in open Court, and before he had assumed any of the rights or authority of an executor, refused to take upon himself the said office, and released all his interest under the said will. The issue was made up in the County Court, and brought to the Superior Court by appeal.

On the trial, in the Superior Court, W. G. Harris was tendered as a witness by the propounders, and objected to by the caveators. The objection was sustained by the Court, who charged the jury, that as there was but one competent subscribing witness, they should find for the caveators. Exception by propounders. Yerdict for the caveators. Judgment and appeal.

Maughtón, Moore and Manly, for propounders.

Winston, Sr., and ffowze, for caveators.

Battle, J.

The question raised in this case, is settled by-three decisions recently made in this Court; and the strong argument of the counsel for the plaintiff, has failed to convince us, that we ought to overrule them. See Tucker v. Tucker, 5 Ire. 161; Morton v. Ingram, 11 Ire. 368; Huie v. McConnell, 2 Jones, 455. The latest of these- decisions, was made at Morganton, in Aug., 1855, and they are all founded upon the case of Allison v. Alison, decided in 1825, and reported in 4 Hawks. 141.

An executor is now made competent to prove the execution of the will in which he is appointed, or to prove the validity or invalidity thereof. R. C. ch. 119, sec. 9. But this will was executed, the testatrix died, the will was offered for probate, and an issue of d&msmit ml non thereon was made up, all before the Revised Code went into operation. It is true, that the second section of the Act concerning the Revised Code, R. C. ch. 121, repeals all laws which are in conflict with its provisions; but the third section, exempts from the operation of such repeal, “ any act done, or any right accruing, or accrued or established, or any suit, or proceeding had, or commenced in any case, before the time when such repeal shall take effect; but the proceedings in every such case, shall be conformed, where necessary, to the provisions of the Revised Code.”

By “ proceedings,” in the plural, is here evidently meant, the formal mode of conducting the “suit or proceeding,” which is in no otherwise to be affected by the repeal. Surely, it was never intended to make a will good, which was before invalid, and thus change the whole devolution of the property mentioned in such will.

Per Curiam.

The judgment of the Superior Court must be affirmed.