Opinion
(December Term, 1860.)
That holograph script was seen among the valuable papers and effects of the decedent eight months before his death is no evidence that it was found there at or after his death.
DEVISAVIT VEL NON, tried before Howard, J., at Fall Term, 1860, of BEAUFORT.
Rodman and Warren for propounders.
McRae and Shaw for caveators.
The propounders proved by one Martin Manning that he was working for the decedent, Charles A. Clark, from about the last of December, 1856, to the last of February, 1857; that said Clark was unmarried and without children; that on an evening in February, 1857, after supper, in the house of the said Clark, he was engaged in writing at a desk; that he got up and, going to a trunk, opened it and took (57) out a small tin trunk, from which he took a red pocketbook, and from out of that he took the paper-writing now propounded as a holograph will; that he read it to the witness and told him to take notice of it as he might see it again; that he then put it back in the pocketbook, and, raising the lid of the desk, placed the pocketbook in the desk; that he never saw the paper afterwards until shortly before the trial in the county court; that the decedent usually carried bank bills in that pocketbook, and he several times took money out of it to pay witness; that no white person lived, during this time, with the decedent, except the witness; that Clark died in November, 1857. There was other evidence, but none as to the point on which the case is decided in this Court. The counsel for the caveators contended that there was no evidence that the script was found among the valuable papers and effects of the decedent, and asked the court so to instruct the jury; and his Honor being of that opinion, so instructed the jury. Plaintiffs' counsel excepted.
Verdict for caveators. Judgment and appeal by the propounders.
Chapter 119, section 1, Rev. Code, requires for the proof of a holograph will that it "be found among the valuable papers and effects" of the deceased, or that "it shall have been lodged in the hands" of some person for safe keeping, etc. In the present case, it is not pretended that the script was lodged in the hands of any person for safe keeping, but it is sought to be established as the will of the deceased upon the ground that it was found among his valuable papers and effects. Found when ? Certainly at or after the death of the alleged testator. The paper could not become a will until the death of the alleged testator, and to show that he intended it to operate as his (58) will, it must be proved that it was found lying among his valuable papers and effects; for from that circumstance it is to be inferred that he regarded and had kept the script as a valuable paper also. The only testimony offered by the propounders upon this all-important point was that of a witness who had seen the deceased put the script in a red pocketbook about eight months before his death. What became of it afterwards does not appear, either from his testimony or that of any other person, nor does it appear where it was found, at or after the death of the deceased. It would, to a great extent, defeat the protection thrown around holograph wills if the fact that a script was seen among the valuable papers and effects of the deceased several months before his death could be submitted to a jury as any evidence that it was found there, at or after his death.
Thinking that there was no evidence in support of that essential point, it is unnecessary for us to inquire whether the red pocketbook spoken of by the witness was a place of deposit for the valuable papers and effects of the deceased.
PER CURIAM. No error.
Cited: Brown v. Eaton, 91 N.C. 29.