Brown v. . Eaton

Ashb, J. The only question presented by the record for the determination of this court, is — Was there such a finding of the paper writing as is required by the statute? The statute provides that “no last will or testament shall be good or sufficient in law or equity to convey or give any estate, real or personal, unless such last will shall have been *29 written in the testator’s lifetime, and signed by him or some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, no one of whom shall be interested in the devise or bequest of the caid estate; or unless such last will and testament be found among the valuable papers and effects of any deceased person, or shall have been lodged in the hands of any person for safe keeping, and the same shall be in the handwriting of such deceased person, wdth his name subscribed thereto, or inserted in some-part of said will; and if such-handwriting shall be proved by three credible witnesses who verily believe such will and every part thereof is in the handwriting of the person whose will it appears to be, then such will shall be sufficient to give and convey real and personal estate.” Rev. Code, ch. 119, § 1; The Code, § 2136. It is not disputed that the paper writing offered for probate was in the handwriting of J. Falcon Brown, and that his handwriting was proved by three credible witnesses; but it is contended that it was not.found among his valuable papers and effects, according to the requirements of the statute, so as to constitute it the last will and testament of the said Brown. The counsel for the caveators relied upon the cases of Little v. Lockman, 4 Jones, 494, and Adams v. Clark, 8 Jones, 56. We do not controvert the decision in those cases. They were conectly decided upon the facts presented. . In the first case, the script propounded was found in the drawer of a bureau among some tuorthless papers and rubbish, .and there were valuable papers and effects kept in another drawer of the same bureau ; the script was not found among the valuable papers and effects. And in the latter case, which the. learned counsel contends is analagous to the one before us, the script was seen eight months before the death of the decedent, when he was seen to put it in a pocket book, in which he usually carried bank bills, and not seen again *30 until shortly before the trial of the issue, and it was held that that was no evidence it was found at or after the death of the decedent. But the facts of our case are altogether different. Here, the will was written in a book with paste-board covers in which accounts against tenants of the decedent were kept by him for the purpose of settlement with them. The book was frequently seen by one of the witnesses before decedent’s death, and again on the day subsequent to his burial. The book was kept either in a bureau drawer or in a valise, but in the one or the other, both of which were kept locked. And notwithstanding the will was not discovered until eight months after the death of J. Falcon Brown, there is a moral certainty that the will was in either the drawer or valise at the time of his death, and the jury were well warranted in so finding. The only other inquiry then to make it the will of the decedent, is — Was it found among his valuable papers and effects? There were valuable papers in both the drawer and valise. In the drawer, were some deeds, a mortgage against Nat. Nicholson for about $1,000 or $1,500, some receipts, fifty dollars in gold and some silver. In the valise, were old deeds to parts of his land, some notes, one on G. B. Alston for about $2,200, fifty dollars in greenbacks, and one of the witnesses expressed the belief that the book was in the valise; and the book itsélf containing accounts against his tenants was a valuable paper, and title-deeds, notes and money are certainly valuable effects. So that, no matter whether the script was found in the drawer or valise, it was found among his valuable papers and effects, and having been proved by three credible witnesses to be in the handwriting of J. Falcon Brown, itcomes up fully to the requirements of the statute. Where a person has two or more depositories of his val *31 uable papers and effects, the finding in either will suffice. It is not necessary it should be found in that which contains the most valuable papers and effects. Winstead v. Bowman, 68 N. C., 170. There is no error. Let this be certified to the superior court of Warren county that further proceedings may be had according to law. No error. Affirmed.