79 S.E. 611 | N.C. | 1913
Caveat to will. On the trial it was made to appear that John Dupree died in 1887, having made a last will and testament and leaving him surviving two children, Robert Dupree and Olivia, a daughter. (258) That in the will the land and chief part of the personal property was devised and bequeathed to Robert, the son, the daughter receiving a nominal legacy of $5. That in December, 1887, said will, attested by three witnesses, was duly admitted to probate in common form and recorded. That Robert, as owner, went into possession of the land immediately on his father's death, and so remained until 1889 or 1890, when he sold and conveyed the same to Wiley Webb, who then went into possession and remained there until his death in 1908, and since that time his heirs have been in possession of the same. That on 6 March, 1911, caveat to said will was duly entered on behalf of the daughter, Olivia A. Williams, and her husband, J. A. Williams, and bond given, and the heirs at law of Wiley Webb duly cited to appear, etc. That prior to her father's death, the daughter, Olivia, was married to J. W. Williams when she was under age, and she and her husband *208
have continuously resided in the neighborhood from the time of their marriage to the present, and were duly cognizant of the fact that the will had been admitted to probate and that Robert was in possession, claiming to own same as devisee. That within a year from the father's death, for the daughter and her husband, a written protest to the will or caveat was submitted to the clerk, who declined to entertain the same for lack of a bond, and, later, in 1893, on an insufficient bond being offered, the clerk again declined to receive the paper as a caveat or to docket same, and no citation was ever issued for any of the parties interested, and the paper was kept on the clerk's desk as papers "Not perfected nor ready to go on the docket" until they were destroyed by burning of the courthouse in 1910. There was further evidence that some time after selling the land to Webb the son Robert had gone to Florida and lived there since. There was testimony on the part of the caveators tending to show that J. W. Dupree was not competent to make a will, and for the other parties that he was of sound and disposing mind and memory at the time. At the close of the testimony, his Honor being of opinion that on the evidence and from perusal of the pleadings the right of caveators to proceed in the cause was barred by lapse of time, etc., which (259) was fully and properly pleaded, entered judgment dismissing the proceedings, and the caveators excepted and appealed.
After stating the case: There is no statute of limitations in this State directly affecting the right of parties claiming under a will to have the same proven, and in so far as it may affect their own interests. Steadmanv. Steadman,
In Beauchamp's case it is said: "The right may be forfeited either by acquiescence or unreasonable delay." The time required at common law for the operation of the principle was not established with exact definiteness, nor was it always uniformly applied, but unless shortened by statute, as in Revised Code of 1856, ch. 65, secs. 18 and 19, reducing *209
the presumptions to ten years in certain instances, the period of twenty years was that more generally prevalent. Undoubtedly this is true as to this jurisdiction (Worth v. Wrenn,
From the facts admitted in the pleadings and evidence, it appears that this will, properly drawn and attested, was duly proven and recorded in Pitt County in 1887, and that the devisee occupied as owner under the will until 1889, or 1890, when he sold to Wiley Webb, and he and his heirs have since been in possession and control of the property as owners, the same being under a deed from the devisee. That during all of this time the caveators, J. W. Williams and wife, have resided within short distance of the property, were fully cognizant of the existence of the will and its terms and of the possession of the property by the purchasers and the nature of their claims, and this delay and long acquiescence has been properly held to bar all right on their part to make further question of the validity of the will.
Our conclusion is not affected by the facts in reference to the attempted caveat in 1887, nor its renewal in 1893. This application was never entertained by the clerk, for lack of a proper bond, which he had the right to require. Revisal, 3136; Code 1883, sec. 2159. The cause was never docketed, nor was any notice or citation even ever issued. No caveat, therefore, has ever been made nor constituted till this of 1911, and if there had been, in the absence of notice issued in reasonable time, it should be held for a discontinuance by analogy to failure to issue an alias summons to term held at stated periods. Etheridge v. Woodley,
True, this position was qualified to some extent in Summerlin v. Cowles,
In the two North Carolina cases of Gray v. Maer,
In Cox v. Brewer, supra, Burwell, J., delivering the opinion, quotes from a Pennsylvania decision as follows: "The rule of presumption, when traced to its foundation, is a rule of convenience and policy, the result of a necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly *211 investigated and justly determined until time has involved them in uncertainty and obscurity, and then ask for an inquiry. Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age, and often regardless of them. Papers which our predecessors have carefully preserved are often thrown aside or scattered as useless by their successors. It has been truly said that if families were compelled to preserve them they would accumulate to a burdensome extent. Hence statutes of limitations have been enacted in all civilized communities, and in cases not within them prescription or presumption is called in as an indispensable auxiliary to the administration of justice."
After giving the case our full consideration, we hold there was no error in dismissing proceedings, and the judgment of the court below is affirmed.
No error.
Cited: In re Bateman's Will,