In Re Bailey

103 S.E. 896 | N.C. | 1920

Devisavit vel non. William Bailey offered a paper-writing purporting to be the last will and testament of Ellen Bailey, dated 26 March, 1914. This was caveated by Cora Wilson, who offered a paper-writing also purporting to be the last will and testament of Ellen Bailey, dated 10 May, 1915. This was caveated by William Bailey. The other heirs at law were made parties. By consent, the following issues were jointly submitted:

"1. Is the paper-writing bearing the date 26 March, 1914, offered by the propounder, William Bailey, the last will and testament of Ellen Bailey?

"2. Is the paper-writing bearing the date of 10 May, 1915, propounded by Cora Wilson, the last will and testament of Ellen Bailey?"

The jury responded to each of these issues, "No." Judgment accordingly. There were no assignments of error filed by Cora Wilson, as required by rules 19 (2) and 21, 174 N.C. 832, 833; Lee v. Baird, 146 N.C. 361, and numerous cases since. Also, there was no brief filed for her, in the time required by rule 34, and the motion by appellee to affirm the judgment as to her is allowed.

In the appeal of William Bailey, the first assignment of error is the admission of the declarations to the witness Woodruff by Ellen Bailey that the paper-writing of 26 March, 1914, was a forgery, and she had never signed the same. It purported to be executed by making her mark, and this declaration was competent to rebut the evidence offered by William Bailey in its support. In re Wellborn, 165 N.C. 641; In re Shelton, 143 N.C. 220;Reel v. Reel, 8 N.C. 248.

The second assignment of error that the court allowed Cora Wilson to introduce as evidence sundry letters of Ellen Bailey cannot be sustained, for the record does not disclose the contents of the letters.

The third assignment of error is to the charge that if the jury find that both paper-writings were legally and properly executed by Ellen Bailey; that the paper-writing propounded by Cora Wilson was the last will and testament of Ellen Bailey, because it was of later date than that propounded by William Bailey, has no foundation, because the jury found that both were forgeries.

The fourth assignment of error, that the court refused to set aside the verdict when requested to do so by all parties at that time, cannot be sustained. In Kenny v. R. R., 165 N.C. 104. the Court held that the parties have a right before trial to settle their differences by agreement and compromise, but, after the return of the verdict, the court, in its discretion, may refuse to try the case over again although the parties consent for a new trial, for courts of justice cannot be turned into moot courts.

No error.