In Re Will of Foy

Brogden, J. The caveators assign as error testimony of a devisee in regard to: (1) handwriting of the testatrix; (2) that he found the script propounded, in a tin box in the tray of a trunk in the' room occupied by the deceased; (3) that the deceased carried the keys of the trunk; (4) that the keys to the trunk were given to witness “by some of the women-folks that were in the room the morning” testatrix died; (5) that the tin box in which the paper-writing was found contained insurance policies, gold pieces and returns from real estate; (6) that all the business transactions of deceased were kept in the tray of the trunk in which the will was found. The trial judge properly admitted the testimony. Cornelius v. Browley, 109 N. C., 542; In re Jenkins, 157 N. C., 429; In re Cole, 171 N. C., 74; McEwan v. Brown, 176 N. C., 249; In re Saunders, 177 N. C., 156; In re Westfeldt, 188 N. C., 702. It is urged that the testimony relating to the keys of the trunk and the record of business transactions contained therein must have been based *496 upon personal transactions with the deceased. "We do not think this contention can he maintained. These were independent facts, and, so far as the record discloses, were based upon independent knowledge, not derived from any transaction or communication with the deceased. Sutton v. Wells, 115 N. C., 3; In re Will of Saunders, 177 N. C., 156. In item eleven of the will, the testatrix, among other bequests, bequeathed to Melvin a or Mellie D. Eoy, one of the caveators, “my trunk with its contents, after taking out the articles that I have mentioned for others.” In connection with this bequest, the caveators requested the court to charge as follows: “That if the jury shall find from the evidence that the will was found in her trunk, and that under the terms of the will the jury shall find that the trunk and its contents were given to Mrs. Melvina Foy, the jury have the right to consider this as an intent to give the will to her that she might destroy or do with it as she pleased, and that she did not intend it to operate as a will.” The court properly declined to give this instruction. The legal effect of such an instruction would be equivalent to holding that a will could be revoked by gift of the reeeptable in which the will was found. The acts which constitute a revocation of a will are defined and prescribed by statute. C. S., 4133, et seq. We hold that the case was properly tried, and the judgment as rendered must stand. No error.