31 S.E. 267 | N.C. | 1898
This was a proceeding to set up and prove the last will of Nancy Evans, the propounders alleging that the will was made in 1882 and was in existence at her death in 1895, and was destroyed by her son Ira after her death. The caveators contend that the execution of the will was procured by the undue influence of her daughter, Mary Friar, one of the beneficiaries; the will gave one-half of the estate to said Mary and the other half to a trustee for the children of said Ira, and that the testatrix before her death desired to change her will. All the evidence was admitted without objection, and there are several exceptions to the rulings and charge of his Honor. They are all untenable, and the only one that we had seriously to consider was the 10th, in relation to the averment of undue influence at the execution of the will.
Mary cared for her mother, and Ira was dissipated, they being her only children. A few years before her death, the testatrix expressed to some of her friends a desire to change her will. The following are the strongest expressions found in the evidence: When her son (117) handed her the will, she said, "Son, why don't you do what I told you?" He said, "It is yours, not mine."
She took it and said, "The hot stove wasn't gone anywhere." To another witness she said she wanted him to write one for her, and he agreed to do so. She said, "She would have to run away from Mary. . . . Mary would not let her go. . . ." She said, "She had a will made, but it was not hers, that it was Mary's will." She never mentioned the matter again to that witness, but once. The court told the jury: "There is no evidence before the jury that there was any undue influence or coercion of Nancy Evans on the part of Mary Friar or any other person in relation to the execution of the will."
The declarations of the testatrix, made after the will was executed, fail to show a single word or act of Mary Friar tending to show any undue influence in making the will, and if she had made the will favorable to Mary it was her deliberate act, and for aught that appears she made it as she wanted it, at that time. If the testatrix afterwards desired to make a change, it was her privilege to do so. The verdict excludes the contention that the will was changed or destroyed, and finds that the script propounded was a true copy.
Our conclusion is that the evidence was not sufficient to allow the jury to find that the testatrix believed the contents of the will to be different from what they really are, or to show any other circumstances which tend to show that it was not her will when made, or any fraud on the *107 part of Mary Friar, and that the court properly so instructed the jury.Reel v. Reel, 1 Hawks, 248; Howell v. Borden, 3 Dev., 446; 27 A. E., 505, 6. There is no error.
Affirmed.
Cited: In re Shelton's Will,
(118)
