Martin v. Hough, 9 N.C. 368, 2 Hawks 368 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 368, 2 Hawks 368

Martin v. Hough et al.

From Cabarrus.

On an issue devisavit vel non, the security t6 the administration which had been granted pendente lite, is admissible as a witness to support the will.

Issue devisavit vel non. Martin offered for probate the will of .Tames Hough, and succeeded in its establishment below. Those who opposed the probate appealed to this Court, and the statement sent up presented two objections, as the grounds of appeal.

The Court received, as a witness to support the will, Martin Picket, notwithstanding the objection was made, that administration pendente lite had been granted to James Martin, and that the witness offered was the security to the administration bond of Martin.

The sanity of the supposed testator being in question, to prove him insane, a letter written by him was read by one of the counsel, and a physician was asked his opi nion as to the- state of miml of the writer, to be collected from the letter. He replied, that part, of the letter appeared to him nonsensical. The Court then remarked, to the counsel and witness, that it had been read hastily, and without regard to the punctuation ; that if it were read slowly, and as punctuated, it would be very intelli - gible | however, the Jury, on retirement, would examine for themselves, whether the opinion expressed by the physician arose from the manner in which the letter had been read, or otherwise. It was contended that these remarks of the Judge upon the letter, amounted to an. expression to tiie Jury of his opinion upon matter of fact

Hall, Judge.

I do not think it was a legal objection to Martin Picket’s competency as a witness, that he had become the security of James Martin, who had obtained letters of administration pendente Ute on the estate in dispute ; because, whether the will is established or not, Martin is liable and hound by it to somebody ; to the executors, if the will is established, 10 the administrators, if it is not.

With respect to the objection founded upon the opinion of fact, which it is alleged the Judge gave in the hearing of the Jury, respecting the sanity of the testator, it seems rather to have been an opinion of the manner in which the letter was read. Í think there is nothing in this objection 5 it is far-fetched ; it is not founded upon the spirit of the act which forbids Judges to give opinions to Juries as to matters of fact. I think the rule for a new trial should be discharged.

The rest of the Court concurred.