Halsey v. . Snell

Seawell, J. We have set out in some detail the portions of the evidence relating to the two exceptions we think it proper to consider. ■ (a) An aggrieved party may recover for the breach of a contract, made upon sufficient consideration, that the promisor will make him the beneficiary of a bequest or devise in his will, but such a contract must be established by the mode of proof legally permissible in establishing other contracts. In the case at bar the defendant introduced, in rebuttal, evidence tending to show that the financial worth of deceased at the time of the alleged contract was little more than the amount he promised the plaintiff, to be given in his will. If we were considering the will itself, with reference to its construction, or upon an issue of devisavit vel non, evidence of the testator’s financial worth and details as to the value of the component parts of his estate might be relevant upon some of the questions involved. Here, however, the contract is entirely separate from the will and the relevancy of the evidence is not aided by the fact that the subject of the contract is a testamentary disposition of property. At best, the proposed evidence is of such doubtful import that we must consider it irrelevant. . (b) Generally speaking, it is error for the trial court to single out any of a number of witnesses and give the jury an instruction bearing upon the issue, based solely upon the credibility of such witnesses, and upon the facts as testified by them. In this case it cannot be said that the testimony of Mrs. J. L. Halsey and Paul Woodley constituted all the evidence tending to prove the contract, or that the evidence of some of the other witnesses mentioned — for instance, that of Mrs. J. W. Halsey — had no other function than to corroborate them. The plaintiff is, therefore, prejudiced because the jury may have construed the instruction as an intimation that they might disregard other evidence *212 supporting plaintiff’s claim, or that such evidence was without significance. Taylor v. Meadows, 182 N. C., 266, 267, 108 S. E., 755; Bowman v. Trust Co., 170 N. C., 301, 87 S. E., 46; Jackson v. Commissioners, 76 N. C., 282; Anderson v. Steamboat Co., 64 N. C., 399. Upon the errors noted, the plaintiff is entitled to a New trial.