Nelson v. . Whitfield

Ashe, J. This case has been imperfectly made up. It is "remarkable that as all the evidence in the ease is based upon the fact that the records of Pitt county were destroyed by fire, there is not a word of proof in the whole case that the court house with the records had been destroyed by fire in thp year 1858. But from the pleadings, the character of the exceptions to evidence, and the argument of counsel, we must conclude that that fact was conceded. At the date of the alleged execution of the will, the courts of pleas and quarter sessions had jurisdiction of the probate •of wills, and were directed to order them to be recorded in proper books kept for that purpose. Rev. Stat., ch. 123, § 4. They were to be recorded in these books after probate had. The fact then that a will of Benjamin Whitfield was found in a book kept by the clerk of the court of pleas and quarter sessions in accordance with the requirements of law, is prima facie evidence of the probate of the will. Omnia pre-svmuntur rite acta esse. There was evidence then to go to the jury of the existence of the will of Benjamin Whitfield, and that it had been duly proved and recorded. What were its contents? The original having been destroyed admits secondary evidence of its contents. And where secondary evidence may be resorted to, it is a rule that the next best evidence of which the subject is capable shall be adduced. Greenl. Ev., §§ 82, 84 and notes. The plaintiffs excepted to the evidence offered by defendants as to the contents of the paper read at the burial of the testator. As no copy of the will is shown to be in existence we think there was no error in admitting that evidence. *51 The paper was twice publicly read in the presence of the crowd assembled to perforin the last rites to the remains of the deceased. It was read as the last will and testament of the deceased. His daughters, Elizabeth and Artemisia, both being in the crowd and being his heirs, must have felt some curiosity to know what disposition their father had made of his property, and would reasonably be expected to give their attention to the reading of an instrument in which they were so deeply interested. It was just the'occasion in some sections of the country which the family of the deceased and the neighbors impelled by curiosity embrace to ascertain whether the deceased left a will, and if so, what disposition he has made of the estate. It may be that the person who read the paper was the custodian of the will, and read it on the occasion to give information to all who might feel an interest in its contents. It was publicly read where the family of the deceased might have heard it, as his will, and soon thereafter his will was admitted to probate. It was some evidence, we -think, fit to be left to the jury, whether it was not the will which was admitted to probate. The next exception taken by the plaintiffs to the evidence was to the admissibility of the declarations of Temperance Whitfield while in the possession of the land. There was no error in the ruling of the court upon this exception. It is well settled that the declarations of persons in possession of land, explanatory of the character of the possession, are admissible in evidence, when in disparagement of their title. 1 Greenl. Ev., § 109; Yates v. Yates, 76 N. C., 142; Kirby v. Mastin, 70 N. C., 540. The evidence was pertinent as a circumstance tending to show a possession in conformity with the provisions of the will as contended for by the defendants. The plaintiffs next excepted to the evidence offered by the testimony of Patience Manning. She was directed in 1854 by Temperance Whitfield, afier some conversation among *52 the persons present, most reasonably to be supposed about the will, to bring it from a tin box where it was found among other papers, and it was read in the presence of Temperance, Artemisia and herself. It was read as the will of Benjamin Whitfield, and it contained a devise as alleged by the defendants. This exception was properly overruled. Temperance Whitfield being a devisee under the will of her husband would be most likely to keep by her a copy of the will as a muniment of her title, and its most natural place of deposit for safe keeping would be a trunk or box with her other valuable papers. It is reasonable to suppose that this was a copy, as the original must be presumed to have been filed with the clerk and destroyed by the fire. But it is objected that there is no evidence of any but one copy, that made by Sheppard. There may have been several copies taken in the lapse of years intervening between the probate of the will and the date mentioned - by Sheppard. And it is usual for an executor to procure a copy of the will of his testator, at the time of proving the will, for reference and guidance in the discharge of his duties under the will. It is reasonable to conclude that Temperance knew the contents of her husband’s will that had been admitted to probate, but it is not reasonable to suppose that claiming the possession of the land under that will, she should preserve among her papers an instrument purporting to be his will which she knew was not his will. This most probably was the copy referred to by Artemisia in 1877 in conversation with the wife of the witness Gray Manning, which she said had not been carried away by Elizabeth, but by herself, and put in a trunk from which it was stolen. She was living with her mother when she died, and Elizabeth administered upon her estate, and tjiey both must have had access to her papers. It was not error in His Honor to overrule this exception. There was some evidence to go to the jury that this paper called the will of Benjamin Whitfield was a copy of that instrument. *53 There was also an exception to the testimony of Fred Bryan, which was properly overruled. His testimony evidently must have reference to the same paper as that testified to by Patience Manning. It was objected in the argument that the defendants’ testimony in regard to the contents of the will, was hearsay. But we do not think it is obnoxious to that objection, any more than is the proof of an examined copy of the record in the usual way, by producing a witness who has compared it with the original, or with what the officer or some other person read as the contents of the record. It is not necessary for the' persons examining to exchange papers and read them alternately both ways. Greenl. Ev., § 508. The plaintiffs’ counsel referred to several authorities upon the point of the competency of the evidence of the defendants, to wit, Redfield on Wills, 348; Chisholm’s Heirs v. Bern, 7 Barr.; Davis v. Segourny, 8 Metc., and other decisions of that class; but on examination of them they were cases where lost wills were propounded for probate or sought to be established in chancery for the purpose of making records of the lost documents, and thereby perpetuating the evidence of their contents. In those cases the courts hold that they should act with great caution, and the proof must be strong, positive, and free from all doubt. But ours is a case not for probate, but to prove the contents of a lost record where secondary evidence is competent, and the best evidence is admitted that is within the power of the party offering the proof. Greene Ev., supra, and cases cited in note. Harrell v. Hare, 70 N. C., 658 ; Mercer v. Wiggins, 74 N. C., 48; Gage v. Schroder, 73 Ill., 44. After the court had overruled the exceptions taken by the plaintiffs to the evidence offered by the defendants, they demurred ore tenus to the evidence adduced on the part of the defence, and asked the judgment of the court upon the demurrer. His Honor refused to require the defendants to *54 join in the demurrer and thereby withdraw the case from the consideration of the jury, without their consent. A demurrer to evidence withdraws a case from the jury, and it is laid down in Tidd’s Practice, 865, that when the evidence is in writing, or if parol, is certain, the adverse party will be required to join in the demurrer; but when the parol evidence is loose and indeterminate or is circumstantial, he will not be required so to do, unless the party demurring will distinctly admit upon the record every fact and every conclusion which the evidence offered conduces to prove. This the plaintiffs declined to do, and there was no waiver of the objection on the part of the defendants. We admit the evidence offered on the part of the defendants relating to the contents of the paper purporting to be the will was slight, and taken by itself might not have been sufficient to satisfy the jury of the contents ; but it was some evidence, and when taken in connection with the facts proved, the long possession of the defendants and their ancestor in conformity with the alleged provisions of the will, and the long acquiescence of the plaintiffs in the exclusive possession of the land by defendants, it makes a very strong case for them. There was no error- in the ruling of the court below upon the demurrer and in the refusal to order a writ of procedendo, non obstante veredicto. Let this be certified^ to the superior court of Pitt county that a procedendo may be issued in accordance with this opinion. No error. Affirmed.