In re Zollicoffer's Will, 50 N.C. 309, 5 Jones 309 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 309, 5 Jones 309

IN RE JULIUS H. ZOLLICOFFER’S WILL.

After a will had been formally executed, one of the subscribing v/itnesses, upon his own motion, but with the consent of the decedent, took it and kept it to submit to the examination of counsel, and did not return it, nor have any discourse with the testator afterwards, it was -Seld that the act of publication was complete, and that it could only be revoked by one of the modes prescribed by the statute.

Issue dmisamt ml non, tried before Ellis, Judge, at the last Spring Term of Halifax Superior Court.

The only point upon which exception was taken by the ■caveators, was iu relation to the due publication of the will, and upon that, the proof was as follows :

The will was written by Mr. Simmons as dictated by the testator; after it was written, it was read over to him, and lie assented to it. Testator, whilst on his bed, signed it; the paper was then placed on a table by the bed-side, and the subscribing witnesses signed it in his presence, and.at his request After this was done, Mr. Simmons, who wrote the will, and was a subscribing witness to it, remarked to Mr. ZollicofFer, that there were two important provisions in the will, and he suggested the propriety of allowing him to take the will and submit it to Mr. Moore, of Ealeigh, with a view of getting his opinion, whether the will, as written, would carry out the objects contemplated by the testator. 'To this, the decedent assented» Mr. Simmons said “ it was his intention, if it .did not carry out the old man’s design, to get Mr. Moore to draft one that would do so, but lie did not mention his purpose, to Mr. Zollicoffer.” He also stated that the suggestion was entirely his own. The witness took the paper, but for the want of a fit opportunity, he did not submit it to the lawyer as he designed. He saw Mr. Zollicoffer two or three times after the date- of the will, but did not speak to him upon the subject of it before his death ; he lived within six or eight miles of the residence of the supposed testator, but no enquiry was made of him, during this period, respecting the paper-writing in question. One witness said, that three weeks after the paper was writtten, Mr. Zollicoffer called upon him and another person, to bear witness that the instrument, in the possession of Mr. Simmons, was not his will; that he was not in a proper state of mind when he executed it. This was some time before his death.

The caveators insisted that the paper-writing was not definitely published, the decedent having consented for Mr. Simmons to submit it to a lawyer, so as to render it capable of destruction, otherwise than by revocation; that the whole was one transaction ; and they ask the Court to instruct the jury, that if they believed this was so, and that it was the purpose of Mr. Zollicoffer that it should be his will, only on condition of its being inspected and approved by Mr. Moore, then it was never published as his will.

The Court instructed the jury, that the circumstance testified to by Mr. Simmons, as to carrying the paper to Raleigh for examination by counsel, did not affect its validit_y, or tend to show it to be an unfinished act. The caveators excepted.

Ye-rdict in favor of tbe propounders. Judgment and appeal.

Jenhins and Fowls, for the caveators.

Moore, for the propounders.

Battle, J.

We agree with Iris Honor, before whom the issue of devisa/oit ml non was tried, that after tlie script was signed b,y tlie testator and subscribed, in Ms presence, by tw© attesting witnesses, the proposal made by one of them, and assented to by the testator, to take the script to a lawyer, for the purpose of ascertaining whether the provisions wore properly expressed, did not prevent it from being a complete will. Assuming that the purpose of the testator was to alter the script, if the lawyer should so advise, there was nothing said or done, at the time, to render the act of publication incomplete. The testator had done all the law required to make a complete will, before the proposal was made by the witness, and being complete, the will could be revoked only in one of the modes prescribed in the statute, viz., by burning, cancel-ling, tearing, or obliterating the same, or by some other will or codicil in writing, or by some other writing, properly executed for the purpose. See Eev. Code, chap. 119, section 22. The judgment of the Court below, pronounced in favor of the script as the last will of the testator, is affirmed.

Pee Cueiam, Judgment affirmed.