In Re Will of Hedgepeth

Connor, J., after stating the case: It is well settled by the decisions of this- Court that the clerk has jurisdiction to take probate of a lost will, or one destroyed by some person other than the testator, or by the testator not having the animo revo-candi. It is not necessary in either case to bring an action in the nature of a bill in equity to set up the will. McCormick v. Jernigan, 110 N. C., 406; Evans' will, 123 N..C., 113. His Honor was therefore in error in holding that the entire proceeding before the clerk was irregular and void. We think that there was evidence before the clerk entitling the propounder to have the will admitted to probate in common form. It seems to be well settled that while it must be shown that the will was executed as prescribed by the statute (Revisal, sec. 3113), if lost or destroyed, its contents may be proven by the testimony of one witness, provided the evidence be clear and satisfactory. “The contents of a lost will may be proved by the evidence of a single witness, though interested, whose veracity and competency. are unimpeached.” This was held after a most learned and exhaustive 'discussion by the Court of Appeals in Sugden v. St. Leonard, 1 L. R., Probate Div., 154. It has been uniformly so held by the courts in this country. In re Johnson’s will, 40 Conn., 587; Mercer v. Mackin, 77 Ky., 434. “If the subscribing witnesses to the lost will are living and within the jurisdiction of the court, they must be produced and examined, as in other cases, to prove execution. If they are dead, or their *250 presence cannot for any valid reason be procured, the execution of the will may be proved by substitutionary evidence.” T Underhill Wills, sec. 274. The court, in such cases, proceeds with caution, and requires satisfactory proof in regard to the contents of the will, its due execution and its destruction or loss otherwise than by the testator or with his consent. It would seem that the proof before the clerk measured up to the standard required. Mr. Harper’s affidavit showed the execution of the will, its attestation by Mr. Drake and himself, the death of Mr. Drake and the contents of the will. Mrs. Cooper’s affidavit was corroborative in every respect. The affidavit of Brewer showed the declaration of L. W. Hedgepeth, the person with whom the will was last seen, that he had destroyed it. The only question in regard to this evidence was whether such declaration was competent. It is true there was no affidavit that a search had been made or that Hedgepeth was dead. However this may be, there was sufficient evidence to justify the clerk in admitting the paper writing to probate in common form. It is, however, equally clear that any jierson interested in doing so was entitled “as of common right” to file a caveat and require the propoirnder to prove the will in solemn form, provided such right had not been lost by acquiescence or unreasonable delay. Revisal, sec. 3135. What is a reasonable time beyond which the next of kin or heir at law will be barred because of acquiescence, has not been settled by this Court. The question is discussed by Pearson, J., in Etheridge v. Corprew, 48 N. C., 14. It would seem that he was of the opinion that no laches would be imputed unless they had notice of the probate. He says: “Certainly delay cannot be considered as amounting to laches until the petitioners are fixed with notice; and as they are entitled, as of common right, to have the script propounded in- solemn form, it was for the respondents to allege and prove all the facts necessary to establish a forfeiture of that right.” Smith, G. J., in Randolph v. Hughes, 89 N. C., 428, discusses the authorities. We find that the Legislature (Acts 1907, ch. 862) has fixed the time within which the caveat must' be filed at seven years. We find nothing to indicate that, in the absence of any controlling circumstances, a shorter time *251 would, prior to the statute, bar the caveators, and we adopt the statutory period in this case. Therefore, when the caveat was filed and the bond given, as required by the statute, the pro-pounder was called upon to prove the will per testes in solemn form. Upon the trial of the issue the propounder carried the burden to show: (1) The formal execution of the will, as prescribed by the statute. This he could do by calling the subscribing witnesses or by accounting for their absence, resorting to*the best competent evidence obtainable. (2) To show the contents of the will, if the original was not produced. This, as°we have said, could be done by a single witness, if no other was obtainable. (3) To show that the original will was lost or had been destroyed.otherwise than by the testatrix or with her consent or procurement. Mayo v. Jones, 78 N. C., 402; Red-field Wills, 349; 1 Underhill Wills, sec. 274. The will not being found, there is a presumption of fact that it was destroyed by the testator animo revocandi. Some courts have held that this is a presumption of law, but the better view is as stated. Redfield, J., in Minkler v. Minkler, 14 Conn., 125, says: “It is not, then, a legal or artificial presumption of law, like the presump-tiones juris et de jure of the civil law, that the will is burned, etc.; it is, at all events, revoked. So, too, it being destroyed, or lost in any other mode, no doubt we would hold, as the English ecclesiastical courts have done, that the mere absence of the will did prima facie amount to a revocation. But w.e would hold this merely as a natural presumption, as matter of fact, and imposing the duty upon him who asserted the contrary to support his assertion by proof.” Jackson v. Brown, 6 Wend., 173. It seems that if the will is shown to have been last seen in the custody of a third person no presumption. of revocation would arise. Shultz v. Shultz, 35 N. Y., 653; 2 Greenleaf Ev., 681. We do not think the ex parte affidavits, taken before the 'clerk when the will was' admitted to probate in 'common form, competent evidence upon the trial of the issue. The caveators were not parties — had no opportunity to cross-examine the witnesses or contradict them. The issue was to be tried upon evidence then and there introduced before the jury. Jordan Brewer’s affidavit was incompetent. Scott v. Maddox, 113 Ga., 795. *252 This brings us to consider the question whether the evidence introduced by the propounder entitled him to go to the jury.. Assuming that the execution and contents of the will were proven, there was a failure of proof to account for its nonpro-duction. Mrs. Cooper does not testify, as stated in her affidavit, that the will was handed to L. W. Hedgepeth. On the contrary,she says, after testifying to its execution: “I do not know what became of it nor the contents of it.” There is no evidence tending to show that Mrs. Hedgepeth parted with the will after signing it. The presumption was not rebutted; in fact, there was no evidence tending to do so. His Honor correctly excluded the evidence of Mrs. G-riffin. It is a hardship upon Lyon, who, relying upon the proof of the will in common form, purchased the land. It would seem that, for the protection of titles and purchasers, it would be well to require all wills in which real property is devised to be proven in solemn form. It would seldom occur to a layman or a lawyer that the title to land devised in a will was open to the uncertainty of a jury verdict for seven years after the probate of the will. If it had appeared that the caveators had notice or knowledge that the will had been admitted to probate and Hedgepeth had taken possession of the land, asserting ownership, we should have thought three years a reasonable time within which to have filed a ’caveat. In the light of our decisions and the testimony, we concur with his Honor’s ruling. The judgment must be Affirmed.