Warren v. High, 5 N.C. 436, 1 Mur. 436 (1810)

July 1810 · Supreme Court of North Carolina

5 N.C. 436, 1 Mur. 436

Henry Warren v. Alsey High.

> From Wake. J

The probate of a will attested by only one witness being- eaveated in the County Court, an issue of “ dewsavit vel non” was made up under the direction of the Court; and the Jury found, that “the deceased did, in the said will, devise both real and personal property.” The caveator appealed, and in the Superior Court the Jury found, that “ the paper writing offered as the will did devise as to personals, but not as to real estate.” The executor offering the will for probate, shall pay the costs; it being his folly to insist in the Coun- ■ ty Court, that the will, being attested by only one witness, could pass the real estate. ■

A paper writing, purporting to be the last will of William Martin, deceased, was offered for probate in Wake County Court, and a caveat was entered to the probate thereof. An issue of devisavit vel non was made up under the direction of the Court. The paper writing was attested by only one witness, and the Jury returned for their verdict, “ that the deceased did devise both real and personal property, in the paper writing offered in evidence as the last will and testament of the said Wilr liam Martin.” The Defendant, the caveator, appealed to the Superior Courtin which Court, the issue being submitted to a Jury, they found, “ that the -paper writ-, ing purporting to be the last will and testament of Wii-iiam Martin, deceased, doth devise as to personals, but not as to real estate.” A question was then made who should pay the costs ? Which question being sent to this Court,

Rill, Judge,

delivered the opinion of the Court:

it appears that the only real question hqre decided, was as to the real property, under the issue of “ devis-avit vel turn” In the County Court, a verdict was found for the Plaintiff, although there was only one subscribing witness to the will. The Defendant very properly appealed, and a verdict was found in favor of him in the Superior Court. As oiir law requires at least two subscribing witnesses to a will of -land, and as it was supposed by those who had an agency in deciding this question in the County Court, that that requisite might be dispensed with, the Defendant was necessarily driven to his appeal 5 and of .course, the Plaintiff ought to pay the costs.