Cornelius v. Brawley

Clark, J.: The issue submitted arose on the pleadings, and was such as afforded either parly opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions, and was therefore sufficient (Humphreys v. Trustees, at this term; McAdoo v. Railroad, 105 N. C., 140; Denmark v. Railroad, 107 N. C., 187; Leach v, Linde, 108 N. C., 547), and, indeed, follows the precedents in such cases, Eaton’s Forms, 282. The issues suggested by appellants presented rather evidential than constitutive facts, and were properly rejected. Grant v. Bell, 87 N. C., 34; Patton v. Railroad, 96 N. C., 455. The widow, who was named as a legatee and devisee in the will, was properly held competent to prove that it was found, after the testator’s death, among his valuable papers. The Code, § 589, removes disqualification on account of interest. The witness is not disqualified under section 590, for she does not testify as to any personal transaction or communication with the deceased, nor is she affected by section 1350, which applies only to attesting witnesses to the execution of the will. Hampton v. Hardin, 88 N. C., 596. Indeed, as to them, section 2147 expressly provides that the attesting witness, who is also a beneficiary under the will, shall be admitted as a witness to prove its execution or validity. The disqualification imposed is not upon him as a witness, but to receive benefit under the will attested and proven by him. [549] So that if the witness here had even been an attesting witness to the will, the Court would have been compelled to admit her as a witness. Vester v. Collins, 101 N. C., 114. The charge as given -was a substantial compliance with the prayers for instruction, so far as they were proper to be granted. The appellant cannot, therefore, justly complain. McDonald v. Carson, 94 N. C., 497. Nor is there any merit in the exception that the Court told the jury that the finding of the paper-writing among the valuable papers of decedent, after his death, must be proven so as to satisfy the jury by the preponderance of the evidence. It is true the appellants had introduced no evidence to contradict the evidence offered to show such finding, but they had assailed such evidence on the ground of the interest of the -witness, and the alleged uncertainty of her testimony. This paragraph of the charge was a mere laying down of the general legal principle which the Court afterwards applied to the case in hand by telling the jury that the burden was on the propounders to prove “affirmatively and directly” that the paper-writing was in the handwriting of the deceased in all its parts, and that it was found after his death among his valuable papers, and that if the jury were not satisfied as to those matters they should answer the issue in the negative. It would not be just to detach a sentence or paragraph of a charge thus from its context. The charge is clear, intelligent and, we think, correct. The instruction that the proof of the facts above referred to must be “affirmative and direct,” is a sufficient compliance with the prayer that it should be “affirmative and distinct,” which counsel insists on because it w.as used in St. John’s Lodge v. Callender, 26 N. C., 335. In the opinion in that case both expressions are used by Ruffin, C. J., and they are treated by him as synonymous. No error.