In Re Will of Kelly

Stacy, O. J. Yiewing tbe evidence in its most favorable light for tbe defeated parties, tbe established rule on a directed verdict (In re Will of Deyton, 177 N. C., 494, 90 S. E., 424), we are of opinion that it is sufficient to carry tbe case to tbe jury on tbe issue of due attestation. It is true, tbe decisions are to tbe effect that tbe subscribing witnesses to a will, in some responsible way, should be requested to witness its execution. In re Herring’s Will, 152 N. C., 258, 67 S. E., 570. This may be impliéd from tbe circumstances and tbe conduct of tbe testator. *553 Burney v. Allen, 125 N. C., 314, 34 S. E., 500. Or it may be shown that another was commissioned to make the request. In re Herring’s Will, supra. It is not necessary that the testator spell it out in so many words. Allison v. Allison, 46 Ill., 61, 92 Am. Dec., 237. A constructive request is sometimes considered the equivalent of an actual request. 28 R. C. L., 127; Lane v. Lane, 125 Ga., 386, 114 Am. St. Rep., 207, and note. As a testator, who is not able or does not choose to write a holograph will, is obliged by the law to depend upon witnesses, he should b¿ allowed to select them in his own way. Graham v. Graham, 32 N. C., 219. Indeed, except by implication, the statute, C. S., 4131, is silent on the point. “Generally, the witnesses are not required to subscribe the will at the express request of the testator. He need not formally request the witness to attest his will as the request may be implied from his acts and from the circumstances attending the execution of the will. Thus, a request will be implied from the testator’s asking that the witness be summoned to attest the will, or by his acquiescence in a request by another that the will be signed by the witness.” Thompson on Wills, 449; In re Will of Leyton, supra. There is no direct testimony that Kenneth Caddell was commissioned by the testatrix to secure witnesses to her will — though this might be inferred — but it would seem to be a reasonable inference that she herself impliedly requested them to attest it. The will was read to her; she understood its meaning, and assented to its execution (Lee v. Parker, 171 N. C., 144); she was shown the line where her name was to appear; beneath this were the spaces for the names of the subscribing witnesses; she could see that they were signing the same paper which she had signed as her will. Graham v. Graham, supra. The law makes two subscribing witnesses to a will indispensable to its formal execution. But its validity does not depend solely upon the testimony of the subscribing witnesses. If their memory fail, so that they forget the attestation, or they be so wanting in integrity as wilfully to deny it, the will ought not to be lost, but its due execution and attestation should be found on other credible evidence. And so the law provides. Bell v. Clark, 31 N. C., 239; Peck v. Cary, 27 N. Y., 9, 84 Am. Dec., 220, and note. Of course, we do not mean to say the supposed will was well attested— only that the evidence is sufficient to submit the question to the jury. The twelve may find either way. The credibility of the evidence is for them. New trial.