Harrison v. Burgess

Full title: HARRISON et ux. v. BURGESS et al

Court: Supreme Court of North Carolina

Date published: Jun 1, 1821

8 N.C. 384 (N.C. 1821)

Opinion

June Term, 1821.

1. Where a cause was removed to this Court at a period when the Court, on motions for new trials, considered matters of law only, and during the pendency of such suit, the Legislature declared that this Court does and shall possess power to grant new trials upon matters of fact as well as law, the Court may consider the case on matters of fact, for such law is not unconstitutional.

2. The wife of the testator may be the person to whose safe-keeping his will — all in his own handwriting — is entrusted, according to the acts of the last session of 1784, for in this there is nothing incompatible with that union of person and interest which exists in law between them.

3. Where a will is found in the drawer of a bureau, commonly kept locked, in which the testator's wife was in the habit of keeping her money, jewels, etc., and which the testator pointed out as the place for depositing his will, it is found among his valuable papers or effects within the meaning of the act.

4. The signature of a subscribing witness is no part of a will, and if there be but one to a will of lands, it may be proved to be all in the testator's handwriting, and to have been found among his valuable papers or effects.

THIS was an issue to determine upon the validity of the will of one Irvine, from HALIFAX. The will, which had but one subscribing witness, had been offered and proved in Halifax County Court by that witness, as appeared from the endorsement made thereon. It was afterwards offered for probate under the act of the second session of 1784, by proof that it was all in the handwriting of the testator and had been by him delivered to some person for safe keeping, or that it was found among his valuable effects after his death.

It was objected below that the court could proceed no further to act in the case, it appearing that the paper had already been proven in the county court before the offering of it a second time. This question was reserved by the court and the issue, viz, "Is the paperwriting offered for probate a good will (385) to convey real estate?" was submitted to a jury.

It appeared from the testimony of the subscribing witness that a short time before the death of the testator he, taking the paper out of his bed, already signed by him, declared it to be his last will and testament, and called upon her to attest it. The plaintiff then offered evidence (which was objected to by the defendant but received by the court) to show that the paper was all in the handwriting of the deceased and was found among his valuable effects; and for this purpose the mother of testator's widow was called and stated that the paper was written several days before it was signed, and was kept by testator in his bed; that after it was signed by him and witnessed he handed it to the witness (the mother of his wife) and desired her to put it away in his wife's drawer and lock it up, and that she immediately did so. This drawer belonged to a bureau in which the wife kept her trinkets, jewels, money and clothes, and it was always kept locked. It further appeared by the testimony of another witness that he (the witness) accompanied the wife of the deceased home from the Shocco Springs, at which place Irvine died, and that in the room in which the paper was signed he saw the widow take the present will out of the drawer of a bureau. This witness did not know whether the drawer was locked and did not look inside of it. Three witnesses then swore that the whole of the paper except the signature of the subscribing witness was, in the handwriting of Irvine. No counter testimony was introduced, but it was insisted that on the law arising from the facts disclosed the paper was not the last will of Irvine under the latter act of 1784.

The court instructed the jury that although the will had but one witness to it, yet if they were satisfied that it was all in the handwriting of the deceased and that it had been found among his valuable papers or effects, or lodged in the hands of (386) any person for safe keeping, that it was sufficiently proven under the act of the second session of 1784, and that under that act the wife might be a depositary. The jury found that the paperwriting was not a last will and testament to convey real estate. A new trial was moved for and refused, and plaintiffs appealed.

Gaston for the defendants.

Seawell for the plaintiffs.

HENDERSON, J.

This case was brought to this Court (390) before the commencement of the last Legislature, at which time this Court could grant new trials in matters of law only. At the last session of the Legislature an act was passed declaring that this "Court does and shall possess the same power to grant new trials, as well upon matters of fact as law, as the Superior Courts of law now have" (Note. — By act of 1822 this law is repealed. — Rep.), and the first question is, does the law of the last session embrace this case; and if it does is it unconstitutional, as interfering with vested rights? The words are plain and unambiguous; the intention cannot be mistaken; they prescribe a rule for the government of the Court thereafter; they profess not to interfere with the decisions of the Court under the former law. But it is said that if by law the Court did not possess the power can a legislative declaration that it does give the power? I answer that it does, not by operation of the old law but by the new law; it is only a short way of legislation; it is simply saying that by such words, to-wit, those used in the former law, we mean such a thing, and when, by the words used, the legislative will is made known it is the law of the land; the words are immaterial, and although the Legislature cannot make a thing to be which is not, by their declaration, as to make what is white black, yet it is competent for them to say by the word white they mean black; and whatever may be the meaning of the former laws upon the subject we have now a plainly expressed legislative will that this Court does and shall possess the power to grant new trials in matters of fact; and this is not a judicial act, which is an exposition of the laws in being and applying them to particular cases, but purely a legislative act, declaring the will of the Legislature, to be applied in all cases thereafter as the rule of action or decision. But it (391) is said in this case it interferes with the vested rights of the defendant, and if so the Court will not apply it to divest those rights. To declare that the property of A belongs to B has been by this Court decided to be beyond the power of the Legislature, in Robertson v. Browne (unreported), relative to Mrs. Browne's land.

To decide on this objection we must examine the nature of the rights of this defendant. In the court below the jury found a verdict in his favor; the plaintiffs moved for a new trial, which was refused by the presiding judge, and judgment given for the defendant, upon which the plaintiffs appealed to this Court; and as regards matter of fact the judge below, who refused the new trial, was the only power which could redress any injury which the plaintiffs might have sustained in matter of fact at the time the appeal was taken and the cause brought into this Court; but this Court had jurisdiction in matter of law and was the proper appellate Court, and the appeal was, as it could be only, on the final judgment in favor of the defendant, and not on the interlocutory order refusing a new trial. By this appeal the judgment was annulled, and all rights derived from it fell to the ground. The alleged vested right of the defendant is not properly secured or belonging to him by the existing laws, but by that immunity (arising from the organization of our courts of justice) in the enjoyment of the consequences of an erroneous exposition of the law (if it be erroneous) by an interlocutory order in a cause still depending, and the legality in the final determination of which (speaking abstractedly) depends upon the correctness of this interlocutory order. This is not such a vested right as that the Legislature cannot extend the powers of the Court wherein the cause is still depending to examine into the alleged error, and if there is one to correct it by the rules which were in existence at the time the new trial was refused, and by which the presiding judge should (392) have regulated himself in the decision. A right, to be inviolable by the Legislature, should be one derived from the laws, or at least under a final judgment of a court in a case decided and the parties out of court; not an immunity from a re-examination of a point in a cause still pending, which point could not be re-examined by the appellate court on account of its organization. I therefore think that this Court possesses the power to examine the alleged error in fact. See 3 Cranch, 79.

The next question is, has there been an error in fact? The first question presented is, is the wife capable of being a depositary of the husband's will under the latter act of 1784? The second is, does the finding of the will in a drawer of a bureau in the dwelling of the husband, and probably in this case in his bed chamber, and where the wife kept her money and jewels, and which was constantly kept locked, and the place pointed out by the husband for the depositing, comply with the requisitions of the act as to the will being found among the valuable papers or effects of the deceased? Third. Is a will all written in the handwriting of the devisor, except the signature of the name of one attesting witness, there being but one, a will in the handwriting of the devisor, within the meaning of the said act? Fourth. There being one subscribing witness can it be offered as a will under the latter act of 1784? Fifth. Being heretofore proven by one witness, can it now be proven in the manner pointed out by said act? There is an union of interest as well as of person between husband and wife, and the will governing this united person resides in the husband, and from this union follow many consequences. They cannot contract, they are but one; they cannot give to each other for the same reason; the wife cannot bind of affect their joint property, or even her own freehold lands, without the consent of her husband, for this requires will, and she has none (I speak not of her powers in a court of equity, and particularly where she has separate property); and a number of other cases might be put (393) as following from this union; but where the acts affect not the rights of the husband as husband she is considered as a human being and having a human existence; she is capable of contracting as agent of the husband, and her purchases or contracts bind the husband as his agent only and not as wife, for in the latter capacity she cannot bind him; she may perform a confidential trust for the husband as attorney or friend, because in this there is nothing incompatible with her character as wife or that union of person and interest which exists between them. Nor is it an objection that during the life of the husband she cannot be a witness as to the deposit. No evidence of that is or can be required during his life; after his death she is as competent as any one; if then rejected it must be on the score of interest or infamy, as others are liable to be. But allowing that she could not be a witness to prove the deposit the same situation would be produced by the death of any depositary during the devisor's life, and this I apprehend would not annul the will. I can see no reasons for disallowing her to be a depositary but many peculiar reasons for allowing it. I think also the place where it was found was among his valuable effects, if the wife could not be a depositary, for then it was his desk, his money, his jewels, and the key was kept by him by the hands of the wife; whether taken out of the drawer was a question of fact. As to the third objection, that it is not a will under the act of April, 1784, there can be no weight in it. The signature of subscribing witnesses is no part of the will. The witnesses put their names there to be enabled to identify the paper, and where the law requires subscribing witnesses it is for the same purpose. Originally the witnesses did not put their names to the paper, but hiis testibus was added by the parties concerned that they might know on whom to call in case of a dispute. The will is not certainly worse by having one subscribing witness; it will certainly answer the purpose of more certainly (394) showing that this is the paper which she saw deposited in the bureau; going beyond the requisitions of the act, in respect of proofs, certainly cannot annul that which comes up to them. I think the fourth objection has been already answered. I can see no reason for the fifth, for its probate as a will of goods does not impeach it as a will of land, and were I to express an opinion upon the third, fourth and fifth objections it would be that if they have any effect upon the law of the case, which I think they have not, they would go to support and not to destroy the will. I think the judge erred in refusing a new trial, and that there must be one.