252 N.C. 454 | N.C. | 1960
Plaintiffs allege that the four children of Will Johnson “were called 'the children’ by the said Hassie M. Johnson during his lifetime.” The answers deny this allegation. The answer of
The judgment contains recitals to the effect (1) that the facts are not in dispute, and (2) that the court “heard the evidence, stipulations and written contentions of the parties,” and made the findings of fact set forth in the judgment. The record before us contains neither evidence nor stipulations. If the “circumstances attendant” when the will was executed are to be considered in ascertaining the intent of the testator, there must be stipulations or evidence and findings of fact with reference thereto. See Entwistle v. Covington, 250 N.C. 315, 108 S.E. 2d 603; Trust Co. v. Wolfe, 243 N.C. 469, 91 S.E. 2d 246; S. c., 245 N.C. 535, 96 S.E. 2d 690. We would be reluctant to construe the will in the absence of stipulations or evidence and findings of fact relating to the question of fact raised by the pleadings as to the identity of the persons referred to by the testator as “the children.” Be that as it may, the judgment must be vacated for the reason stated below.
Under the judgment, Melvin Johnson, a plaintiff, and Mrs. Yola Johnson, a defendant, are adjudged beneficiaries. Yet it appears on the face of the record that these two persons were the attesting witnesses, and the only attesting witnesses, to the will. The record indicates, and it was stated on oral argument, that the will was probated as an attested will.
G.S. 31-10, as amended by Ch. 1098, Session Laws of 1953, and by Ch. 73, Session Laws of 1955, provides:
“(a) A witness to an attested written or a nuncupative will, to whom or to whose spouse a beneficial interest in property, or a power of appointment with respect thereto, is given by the will, is nevertheless a competent witness to the will and is competent to prove the execution or validity thereof. However, if there are not at least two other witnesses to the will who are disinterested, the interested witness and his spouse and any one claiming under him shall take nothing under the will, and so far only as their interests are concerned the will is void.
“(b) A beneficiary under a holographic will may testify to such competent, relevant and material facts as tend to establish such holographic will as a valid will without rendering void the benefits to be received by him thereunder.”
Upon the present record, Melvin Johnson and Mrs. Vola Johnson take nothing under the will and so far as their interests are con
Judgment vacated, cause remanded.