Brown v. Beaver, 48 N.C. 516, 3 Jones 516 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 516, 3 Jones 516

EZEKIEL BROWN AND GEORGE W. BRISTOL propounders, vs. ANDREW BEAVER AND OTHERS, caveators.

It is no objection to the probate of a script as a holograph, that it has one subscribing witness, and was intended by the decedent to be proved by subscribing witnesses.

Issue of dwisavit vel non, to try the validity of the will of Ephram Aminonds, before Manly, Judge, at the Pali Term, 1855, of Cherokee Superior Court.

The instrument offered for probate appeared to be attested by the requisite number of witnesses, but one of them was, upon inquiry by the Court, pronounced- incompetent upon the score of his religious sentiments ; whereupon the propounders proposed to prove the paper as a holograph, according to the statute. This was objected to by the caveators, upon the ground that the decedent had intended to attest his will by subscribing witnesses, and that it could not be established in any other way.

The Court admitted the evidence and the caveators excepted for error.

The will was then proved by three witnesses to be all in the hand-writing of the deceased, and deposited by him with a neighbor for safe-keeping. The case then turned upon the question of capacity, and after instructions from the Court, to which there was no exception, the jury found in favor of the propounders. Judgment of the Court accordingly, and an appeal by the caveators.

Baxter, for the propounders.

J. W. Woodjm, for the caveators.

Battle, J.

In tbe case of Harrison v. Burgess, 1 Hawks’ Rep. 384, a script was offered for probate as the holograph will of one Irvine. The caveators objected, because it was attested by one subscribing witness. The Court over-ruled the objection with this short and emphatic remark: “The

will is certainly not worse by having one subscribing witness; it will certainly answer the purpose of more certainly showing that this is the paper which she (the witness) saw deposited in the bureau. Going beyond the requisition in respect of proofs, certainly cannot annul that which comes up to them.” This reason is certainly decisive of the present case, and shows that his Honor was right in admitting proof of the script as a holograph will. This renders the question as to the competency of one of the-subscribing witnesses, unnecessary, and makes it improper for us to express an opinion upon it.

Per Curiam.

Judgment affirmed.