4 S.E.2d 870 | N.C. | 1939
This is a controversy over a caveat to the will of Gus Coffield. On 17 May, 1938, Gus Coffield executed a will. On 18 May, 1938, he married Fannie Coffield. On 20 February, 1939, Gus Coffield executed a codicil to his prior will ratifying and confirming his will dated 17 May, 1938, except as changed in the codicil. In the codicil Gus Coffield devised certain realty to his wife, Fannie Coffield. At the trial of the action it was not contended that the first will was not properly executed. However, it was contended by the caveators that the codicil was not a proper republication of the first will, that Gus Coffield was not mentally competent to execute a will at the time of the execution of the codicil, and that the execution of said codicil was procured by fraud and undue influence.
The issues submitted to the jury and their answers thereto were as follows:
"1. Was the paper writing propounded for probate executed by Gus Coffield in the manner and under the formality required by statute? Ans.: `Yes.'
"2. At the time of the execution of said paper writing on 20 February, 1939, did Gus Coffield have sufficient mental capacity to make a valid and binding will? Ans.: `Yes.'
"3. Was the execution of said paper writing procured through undue influence, as alleged in the caveat? Ans.: `No.'
"4. Is said paper writing, and each and every part thereof, the last will and testament of Gus Coffield, deceased? Ans.: `Yes.'"
The court below rendered judgment on the verdict sustaining the will. The court further rendered the following judgment: "In the above entitled action, it appearing to the court that Elbert S. Peel, Hugh G. Horton and J. C. Smith, attorneys for Paul D. Roberson, represented the propounders of the last will and testament of Gus Coffield and performed valuable services in that connection, and acted as counsel for said *287 estate in other matters pertaining thereto: Now, therefore, it is ordered and adjudged that said Elbert S. Peel, Hugh G. Horton and J. C. Smith be allowed the sum of $750.00 as fees in said capacity up until the signing of this judgment, same to be paid by Paul D. Roberson, executor of the last will and testament of Gus Coffield. Henry A. Grady, Judge Presiding."
The caveators made numerous exceptions and assignments of error and appealed to the Supreme Court. The material assignments of error and necessary facts will be set forth in the opinion. On 17 May, 1938, Gus Coffield executed his will. On 18 May, he was married to Fannie Coffield, who survives him. A will is revoked by marriage. N.C. Code 1935 (Michie), sec. 4134.
On 20 February, 1939, he executed a paper writing. In it is the following: "I, Gus Coffield, of said County and State, make this codicil to my last will and testament published by me, and dated the 17th day of May, 1938, which I ratify and confirm, except as the same shall be changed hereby. Whereas, I have changed my mind as to Item #5 thereof, I hereby make the following devises and bequeaths," etc.
It is contended by the caveators that the paper writing was not a will and the will of 17 May, 1938, was revoked by statute and there was no valid reexecution and therefore the paper writing purporting to be a will was null and void. We cannot so hold under the authorities in this State, which we think are borne out by reason and logic.
In Murray v. Oliver,
In Sawyer v. Sawyer,
We think the words used in the codicil incorporates and revives the will except in so far as it is changed by the codicil. No question was raised in the court below as to the proper execution of the first will. In fact, in the charge of the court below it is stated, to which no objection was made: "I do not understand that there is any question about the execution of this first paper writing."
Caveators contend that the paper-writing, or codicil, was null and void (1) that Gus Coffield was not mentally competent to execute a will; (2) the execution of the codicil was procured by fraud and undue influence.
As to the third issue, in regard to undue influence, the court below held that there was no evidence to go to the jury on that question. From a careful review of the record, we think the court below correct.
The battleground was the second issue: "At the time of the execution of said paper writing on 20 February, 1939, did Gus Coffield have sufficient mental capacity to make a valid and binding will?" The jury answered "Yes." The evidence on this issue was conflicting and it was purely a question of fact for the jury. We can see no error in the trial and the charge of the court below on this issue. The charge does not impinge C. S., 564, nor is the case of S. v. Rinehart,
The court below allowed counsel for propounders the sum of $750.00 as attorneys' fees. Wells v. Odum,
We see no prejudicial or reversible error in the record.
No error. *289