23 N.C. 209 | N.C. | 1840
If we are to understand the answer given by the (212) presiding judge to the inquiry of the jury as laying down the proposition that when there is any evidence of fraud or imposition in procuring the execution of an instrument as a will; the contents whereof are unknown or misrepresented to the supposed testator, the triers are not at liberty to consider the dispositions of property actually made therein, we should feel ourselves bound to hold that the jury had been misdirected. A conflict between these dispositions and the known testamentary intentions of the deceased, the repugnance of these dispositions to the claims of natural affection or of moral duty, their conferring material benefits on those through whose agency the supposed will has been prepared — these, and such as these, are circumstances fit to be considered and weighed in conducting the judgment to a proper conclusion. But it is plain, we think that such would not be a fair construction of the answer.
The instrument itself had been permitted to be read to the jury, and the counsel for the caveators allowed to comment freely upon its dispositions. The jury had then been instructed that as the capacity of the deceased to make a will, and the formal execution of the instrument as his will, were not questioned, the only inquiry for them was whether the deceased knew the contents of the instrument, and they were directed, if they should be satisfied that he did not know the contents, to find that it was not his will. This instruction was never afterwards withdrawn, contradicted, or modified. When they returned with the inquiry whether they were not at liberty, upon the issue submitted to them, to take into consideration the dispositions in the will, his Honor answered in the negative. But this negative was properly qualified and fully explained by his accompanying observations. They were told "that the will of itself proved nothing, for that however absurd and unnatural its dispositions might be, yet, if from the evidence they were satisfied that the deceased knew the contents of the paper, and with that knowledge executed *164 it as his will, intending it so to be, it was his will," and that it was with a view "to that question all the evidence given in the case (213) was submitted to them." Thus explained, it amounted to no more than what must be held to be clear law, that where capacity, formal execution, and volition all appear, no tribunal can pronounce against a will because of its disapprobation, however strong, of the dispositions made by the testator.
PER CURIAM. No error.
Cited: In re Burns' Will,
