51 N.C. 518 | N.C. | 1859
The issue was to try the validity of the alleged will of William Wellman.
It was in evidence, that the defendant requested E. J. Grigg, one of the subscribing witnesses to write it; that he wrote it according to instructions given him by the former; that the decedent then signed the paper, and requested E. J. Grigg and J.G. Williamson, to witness it, which they both did in his presence; that after they had subscribed the paper as witnesses, the decedent requested Mr. Williamson to act as one of his executors, (C. Grigg having been alone named in the script as executor); that Williamson agreed to do so, and thereupon the other witness, E. J. Grigg, inserted Williamson's name in the presence of the alleged testator as one of the executors. It being suggested by Mr. Williamson that he could not act as executor and prove the will as a witness, one Mosses Wright was sent for a few days afterwards, and then, in the decedent's presence, and at his request, subscribed the script as a witness, J. G. Williamson being also present, and having erased his name as a witness, E. J. Grigg not then being present. It was admitted that this did not alter the provisions of the will.
It was insisted that the paper writing was not duly executed, because E. J. Grigg had subscribed as a witness before the name of Williamson was inserted as one of the executors. His Honor held that this did not render the will invalid. Defendants excepted. *519
Verdict in favor of the will. Judgment for the propounders. The caveators appealed. We concur with his Honor in the opinion that the subscription of the paper writing by E. J. Grigg, as a witness, before the insertion of the name of J. G. Williamson, as one of the executors, did not, under the circumstances, prevent it from being proved as the last will and testament of the alleged testator. The witness, and the testator, were both present, and the execution of the paper was in fieri, when the name of the additional executor was inserted at the instance of the testator, and with the knowledge and concurrence of the witness. It would have been an idle ceremony for them to have then traced their names over again, or have written them anew. It appears from the paper writing itself, that the addition of another executor, did not make any material alteration in its devises or bequests. In the case of Bateman v. Mariner, 1 Murph. Rep. 148, the testator signed his will, and it was attested, in his presence, by one witness. He then inserted the date and the words "my dearly beloved," and had it attested in his presence, by another witness. The testator then acknowledged the execution of the will before both witnesses, and it was held to be a valid execution of it. There is no error.
PER CURIAM, Judgment affirmed. *520