Raleigh & Western Railway Co. v. Glendon & Gulf Mining & Manufacturing Co.

Avery, J.: The right of plaintiff to recover was dependent upon the competency of the will of Oliver Ditson, which constituted an essential link in its chain of title. The Court intimated the opinion that the probate was defective, in that it failed to show affirmatively that the will was executed in accordance with the statutes {The Code, §§ 2136 and 2156). The first of the sections referred to requires, in explicit and mandatory terms, that “ no will or testament shall be good or sufficient in law to convey or give any estate, real or personal, unless such will shall have been 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, except as hereinafter provided.” The subsequent section (2156), as amended by the Act of 1885, ch. 393, allows a properly authenticated copy of a will proved in another State to be recorded in this State, but provides that “ when such will contains any devise or disposition of real estate in this State, such devise or disposition shall not have any validity or operation unless the will is executed according to the laws of this State, and that fact must appear affirmatively in the certified probate or exemplification of the will'.” It is essential to the sufficiency of a will to pass the property, the title to which is in dispute, that it shall be subscribed in the presence of the testator by two witnesses at [244] least. Prior to January 1, 1856, the fact of subscription by both witnesses could be shown, on proof in common form, by on.e of them. Jenkins v. Jenkins, 96 N. C., 254; Moody v. Johnson, 112 N. C., 798. But since that date it must appear that at least two of the witnesses, if living, were examined, or, if one has died, the living witness must testify, not only to the handwriting of the dead wdtness, but to his subscription, as well as his own, in the presence of the testator. In re Thomas, 111 N. C., 409. Such is the proof prerequisite to sufficiency, where the original record is made in this State. But where a certified copy from another State has been recorded, we are met by the further plain provision of the statute that the fact of subscribing by at least two witnesses must appear affirmatively “ in the certified probate or exemplification of the will.” The Code, § 2156. The mere recitation in the attestation clause is not affirmative evidence. It is not necessary to discuss or pass upon the other questions raised by the intimations of the Judge, the proof of the paper-writing purporting to be the will of Difson being defective. The judgment of the Court below is Affirmed.