Cowles v. . Reavis

Davis, J.: It appears upon the face of the will that there were two subscribing witnesses, and it was sufficient to pass the real estate of the testator. It is certified by the Clerk *421 that it was proved in open Court by one of them, and this is sufficient evidence of probate. Harven v. Springs, 10 Ired., 180, and cases cited. The will was proved in common form, prior to 1856, and is governed by Chapter 122, Section 6 of the Revised Statutes, which authorized the probate in common form by one subscribing witness, and not by Chapter 119, Section 15 of The Revised Code. Jenkins v. Jenkins, 96 N. C., 254. The case of Gerard’s Will, 2 Haywood, 144, cited by counsel for defendant, has no application. That case only decides that the will must be proved in the Court of the county in -which the deceased resided. It was there proposed to prove the will of Gerard, who resided in Edge-combe County, in the Superior Court of Halifax County, and the Court held that that could not be done. Nor is the case of Leatherwood v. Boyd, 1 Winst., 123, like this. Pearson, C. J., says, that “Had the certificate stopped after the words, ‘the last will and testament of John Leatherwood was duly proved in common form by the oath of R. A. Edmundson, one of the subscribing witnesses thereto,’ it would have been sufficient, for the presumption is that the Court knew how to take the probate of a will, and saw that it was properly done. But if there be anything on the face of the proceedings to show the contrary, that will rebut the presumption.” In that cáse the certificate stated further facts that rebutted the maxim, omnia presumunter rite esse acta. In this case nothing appears in the certificate to rebut the presumption. Marshall v. Fisher, 1 Jones, 111. The first exception was properly overruled. The second exception is, that the deed from Moses L. Mickle was improperly admitted, because executed by only one of the executors, and it does .not appear on the face of the deed that the life-tenant was dead. It appears from the will itself that the deed could be only made by the executor Moses L. Mickle, for the executrix was the tenant for life, and the land was to be sold after her death. But Chapter 46, *422 Section 40, was in force at the time, and expressly authorized the surviving executor to sell, and this exception cannot be sustained. Nor is there any force in the objection that it does not appear from the deed that Lucy Mickle, the devisee for life, was dead. This will be presumed. 1 Greenleaf Ev., § 20; Hughes v. Hodges, 102 N. C., 262. The third exception is to the refusal of the Court to give instructions numbered 2, 3, 4 and 5, asked by the defendant. It is too clear to need citation of authority that if the beginning corner has been destroyed, as in this case, it is competent, in order to ascertain the true boundary, to survey the land by beginning at any known corner or point from which the boundaries may be located, and the second instruction asked for was given as far as the defendant was entitled to it. The 3, 4 and 5 instructions were properly refused, and the charge of his Honor upon the question of boundary covered all that the defendant was entitled to. The last call was 125 poles to the beginning, and the beginning point having been established, the line must extend to or stop at it, regardless of distance. No error.