Opinion
(April Term, 1803.)
1. Where any influence has been used in inducing the execution of a will, the jury must decide whether it was by fair and reasonable means, or by unfair and fraudulent ones; if the former, they should find for the will; but if the latter, against it.
2. The signing of a will may be proved by proof that testator acknowledged it, though the name or signature or handwriting was not before him, and though the paper lay at a distance on the table. And the attestation of witnesses may be at different times, so it be in the presence of the testator.
A PAPER, purporting to be the last will of Henry Eelbeck, deceased, was offered for probate to the County Court of CHOWAN, and opposed, and an issue made up under the direction of the Court of devisavit vel non, pursuant to the act for that purpose. A verdict was found in the affirmative, and an appeal taken to this Court, and now came on to be heard in this Court.
The proof of the execution was by one witness, who said he saw it signed by the testator, and witnessed it in his presence, and that the other witness, the next day, came into the room, and the will, being called for, was produced and handed to the testator, and then carried to the second witness, who asked the testator if that was his act for the purposes within mentioned, who answered, "Yes"; whereupon he signed in the presence of the testator. The other witness, in his deposition, said that he came into the room and witnessed the will, and asked the testator if that was his act for the purposes within mentioned, who said, "Yes."
The requisites to the right execution of a will are that the testator must be sane and under no restraint or improper influence; that he must sign it; that it must be witnessed in his presence by two witnesses. There is a sound distinction between an honest and an unfair exertion of influence. Should a brother or sister, for instance, with whom the testator had been at variance, represent to him the facts which had led to it in such a way as to convince him that his displeasure was groundless, and by these means he should alter his former purposes, and make a will in her favor, or in favor of her children, to the prejudice of legatees provided for by a former will, that would not be cause for invalidating the latter. The jury will judge whether any influence has been used on the occasion of making this will; whether it was by fair and reasonable means, or by unfair and fraudulent ones, and decide accordingly. As to the point of execution, the two witnesses must each depose to the signing as well as to every (233) other material fact. But the signing may be proved from the witness having seen it written by the testator or from having heard him acknowledge it. It is not necessary, if he acknowledge the signing, that the name, or signature, or handwriting, should be before him at the time; if the paper lie at a distance on the table, and he acknowledge the signing without seeing it, it is sufficient. It is admitted, and so the law is, that the attestation of the witnesses may be at different times, so it be in the presence of the testator.
Verdict for the will.
NOTE. — Upon the first point, see Downey v. Murphey, 18 N.C. 82; Ross v. Christman, 23 N.C. 209. On the second point, see Bateman v. Mariner, 5 N.C. 176; Blount v. Patton, 9 N.C. 237; Ragland v. Huntingdon, 23 N.C. 561.
Cited: In re Herring, 152 N.C. 263; Ripley v. Armstrong, 159 N.C. 159; Watson v. Hinson, 162 N.C. 77; Bradshaw v. Bank, 172 N.C. 634.