In Re the Last Will & Testament of Duke

Winborne, J. While caveators, the appellants, bring up and present for decision four or more assignments of error, only two require express consideration, and in them prejudicial error is not made to appear. The first assignment of error so presented in brief of caveators is based upon exceptions Numbers 7 and 8, in respect to the testimony of the witness Guy Elliott last given as shown in the foregoing statement of the case. As to this, the caveators contend that declarations of Garland L. Duke, a beneficiary under the will of Hilda Smith Duke, are incompetent as hearsay and self serving declarations, and that they are also incompetent under the best evidence rule. At the outset, the setting under which the testimony was offered must be kept in mind. Here the caveators had offered testimony tending to show that bad relationship existed between the testatrix, Mrs. Duke, and her husband, and that he was the beneficiary under her will. And it is manifest that propounders were countering with declaration of the husband as tending to show his state of mind in refutation of the charges of bad relationship between him and his wife. For this purpose the declaration was competent. We find it declared in Stansbury’s N. C. Evidence, Section 141, that “If a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay.” S. v. Griffis, 25 N.C. 334, m.p. 504; Falls v. Gamble, 66 N.C. 346, m.p. 455. In the Gñffis case the Court in opinion by Gaston, J., said: “The testimony to which the defendant has excepted is not liable to the objection that it is ‘hearsay evidence.’ It was not offered to show the truth of what the defendant’s father had said, but simply to prove the fact that he made such a declaration. If that fact became material or relevant to the inquiry before the jury, certainly testimony of the fact was proper.” Indeed, in 57 Am. Jur. 300, Section 419, the author states: “The declarations of a beneficiary may be admissible on the issue of undue *349 influence under an exception to the hearsay rule, such for example, as one applicable where the declarant is dead”; and that “they may also be admissible when they are offered, not as proof of the fact asserted, but as original evidence establishing a state of mind . . .” And again in Section 422, page 302, it is said: “A declaration of the beneficiary is also admissible, not under any exception to the hearsay rule, but as original evidence, to show the attitude, affection or relation between the declarant and the testator.” Moreover, the author continues: “While in some eases the declarations of a beneficiary have been held inadmissible because made after the execution of the will, the general rule is that in the absence of some other reason for the exclusion of the declaration, .the mere fact that it was made after the execution of the will does not render it inadmissible.” See also Anno. 167 A.L.R. 13. Furthermore, the best evidence rule is not applicable here. The purpose of the declarations is not to show the contents of a will of Garland L. Duke, but to show the fact that he expressed the desire to make a will naming his wife as the beneficiary, a manifestation of his state of mind, and attitude toward his wife. The second assignment of error, No. 4, presented in brief of caveator appellants, based upon Exception 10, is to this portion of the charge: “The court instructs you the burden of that issue is upon the propounders to satisfy the jury upon the evidence and by its greater weight that the said paper writing propounded as the last will and testament of Hilda S. Duke was executed in accordance with the formalities required by law; and the propounders have offered such evidence and the court is not aware of any evidence to the contrary, and therefore instructs the jury that if you believe the evidence and all of the evidence and find the facts to be as all of the evidence tends to show, and by its greater weight, it would be your duty to answer that first issue ‘Yes.’ ” While this Court has held that on the issue of devisavit vel non a motion for judgment as of nonsuit, or for a directed verdict, will not be allowed, In re Will of Ellis, 235 N.C. 27, 69 S.E. 2d 25, and cases cited, this Court has also held in the case of In re Will of Evans, 223 N.C. 206, 25 S.E. 2d 556, that a charge, similar to the one now under consideration, does not constitute a directed verdict. The record supports the statement of the court that the propounders have offered evidence that the paper writing propounded as the last will and testament of Hilda S. Duke was executed in accordance with the formalities required by law, and that the court is not aware of any evidence to the contrary. Hence it was proper for the court to give the instruction quoted above. The verdict is made to rest upon the finding of the jury upon the evidence offered. *350 Other assignments require no express consideration. Prejudicial error does not appear. Indeed, the case appears to have been fairly presented to the jury upon conflicting evidence, and the jury has resolved the case in favor of the validity of the will. Hence in the judgment from which appeal is taken, there is No error.