#### In re Will of MARY COOPER.

(Filed 19 December, 1928.)

1. Wilis — Probate—Will Probated in Common Form Not Subject to Collateral Attack.

Where a will has been duly probated in common form it is conclusively presumed to be the will of the testator until set aside by a proceeding properly brought for the purpose, C. S., 4145, and is not subject to collateral attack.

2. Wills — Probate—Probate of Second Will of Same Person — Signatures.

After a will has been duly probated in common form, to which no caveat has been entered, and a later paper-writing purporting also to be the will of the same deceased person is allowed to be produced and duly probated, the verdict of the jury upon a caveat filed thereto, under sufficient evidence and correct instructions that the later will was not signed by the testator, operates, in effect, to leave the will first probated the valid will of the testator therein, and the other issues in the caveat proceeding, which the jury did not answer, as to mental capacity and undue influence, and the question as to whether the first will could have thus been set aside, are immaterial.

S. Wills — Requisites and Validity — Fraud—Signatures.

Evidence in a caveat proceeding that the testator was not capable of making a will and that under the circumstances he could not have signed it, is sufficient under the facts of this case to sustain a verdict that the will was a forgery.

4. Wills — Requisites and Validity — Codicils.

Where a will has been duly admitted to probate as the last will and testament of the deceased, another and later will apparently independently written and making an entirely different disposition of the property cannot be construed and be given effect as a codicil to the former will.

Stacy, C. J., dissents.

Appeal by propounder from *ilarding, J.,*at June Term, 1928, of MeckleNbueg.

No error.

Proceeding for probate, in solemn form, of a paper-writing propounded by Charlie Williams, sole legatee and devisee named therein, as the last will and testament of Mary Cooper, deceased.

A caveat was filed to the probate of said paper-writing by E. P. Stowe, sole legatee and devisee named in a paper-writing, which was probated, in common form, as the last will and testament of said Mary Cooper, prior to the filing of said paper-writing for probate by Charlie Williams. No caveat has been filed to the probate of the will of Mary Cooper, under which E. P. Stowe, the caveator in this proceeding, claims as her sole legatee and devisee.

*419Issues involving tbe grounds upon wbieb tbe caveat was filed were submitted to tbe jury. Tbe verdict was as follows:

1. Is tbe signature of Mary Cooper to tbe paper-writing offered by propounder as tbe last will and testament of Mary Cooper, a forgery? Answer: Yes.

2. Was tbe execution of said paper-writing procured by tbe exercise of undue influence over tbe said Mary Cooper? Answer: .

3. Did Mary Cooper, at tbe time of tbe execution of said paper-writing by ber, bave sufficient mental capacity to make a will ? Answer:

4.Is tbe said paper-writing, tbe last will and testament of Mary Cooper? Answer: .

Tbe jury having answered tbe first issue, “Yes,” under instructions of tbe court did not answer tbe other issues, but returned said answer as tbe verdict. , -

From judgment on tbe verdict, propounder appealed to tbe Supreme Court.

*J. D. McCall and C. H. Edwards for propounder.*

*Thaddeus A. Adams for caveator. -*

CoNNon, J.

Mary Cooper, an elderly colored woman — between 65 and 70 years of áge — died at ber borne, in Charlotte, N. C., on 9 October, 1927. She bad been sick about two weeks before ber death. There was evidence that “she bad been ailing pretty much all tbe year.” She left surviving ber no next of kin, and no heirs at law. At tbe date of ber death, she owned property, real and personal, of tbe value of several thousand dollars.

On 26 October, 1927, a paper-writing, dated 9 December, 1914, was probated, in common form, by tbe clerk of tbe Superior Court of Mecklenburg County, as tbe last will and testament of tbe said Mary Cooper. This paper-writing was written by an attorney at law, a member of tbe bar of Charlotte, N. C. Its execution was attested by three witnesses, tbe draughtsman, another attorney at law, and a stenographer, who was employed in tbe office of tbe draughtsman. E. P. Stowe is named as tbe sole legatee and devisee in said will, of all tbe property of whatsoever kind, and wherever situated, both real and personal, of tbe said Mary Cooper; be is also appointed therein as tbe executor of said will. There was evidence tending to show that both prior and subsequent to tbe date of said paper-writing, to wit: 9 December, 1914, tbe relations between tbe said E. P. Stowe and Mary Cooper were friendly and intimate; be looked after ber. Immediately after ber death, tbe said E. P. Stowe took tbe said paper-writing from *420the “little treasure box,” in wbicb Mary Cooper bad kept the samé. Within a few days thereafter, the said paper-writing was propounded by E. P. Stowe, and was probated and recorded by the clerk of the Superior Court of Mecklenburg County as the last will and testament of Mary Cooper. The probate and record of said paper-writing is conclusive evidence that the same is the last will and testament of Mary Cooper. No caveat has been filed thereto. It has not been vacated on appeal or declared void by any competent tribunal. C. S., 4145. *Holt v. Ziglar,*163 N. C., 390, 79 S. E., 805. The probate of said will, in common form, cannot be attacked, collaterally. *Varner v. Johnston,*112 N. C., 570, 17 S. E., 483. The title of E. P. Stowe to all the property, real and personal, devised and bequeathed to him by the said will is good as against all persons, claiming under Mary Cooper, since her death, so long as said will stands.

On 31 October, 1927, another paper-writing, dated 4 October, 1927, was probated, in common form, by the assistant clerk of the Superior Court of Mecklenburg County, as the last will and testament of Mary Cooper. This paper-writing was written by Walter J. Harris, a colored man; its execution by Mary Cooper is attested by the said Walter J. Harris and Emma Harris, his wife. Charlie Williams is named therein as the sole legatee and devisee of all the property owned by Mary Cooper; no executor is named in said will, but the said Charlie Williams is directed to pay all the debts of said Mary Cooper. There was evidence tending to show that Charlie Williams had lived in the home of Mary Cooper for about a year before her death, and that during said time he had “waited” on her, when she was sick. Charlie Williams found said paper-writing in the wood shed on the premises of Mary Cooper after her death. It was among the bed clothes of deceased, which had been taken from her house to the wood shed. The said paper-writing was offered for probate as the last will and testament of Mary Cooper, by Charlie Williams, on 31 October, 1927. After its probate in common form, by the assistant clerk of the Superior Court of Mecklenburg County, as such last will and testament, to wit: on 2 November, 1927, a caveat to such probate was filed by E. P. Stowe, the executor, and sole legatee and devisee in the paper-writing probated on 26 October, 1927, as the last will and testament of Mary Cooper.

In said caveat it is alleged (1) that the signature of Mary Cooper in the paper-writing dated 4 October, 1927, is a forgery; (2) that if said signature is not a forgery, it was procured by fraud and undue influence upon the said Mary, Cooper; and (3) that if said signature is not a forgery, the said Mary Cooper did not have sufficient mental capacity to make a will at the date of said paper-writing.

*421At the trial in the Superior Court of the issues submitted to the jury, involving the grounds upon which the caveat was filed, the jury found, in answer to the first issue, that the signature of Mary Cooper on said paper-writing is a forgery. TJnder instructions of the court, to which there were no exceptions, the jury did not answer the other issues, but returned the answer to the first issue as the verdict. Upon his appeal to this Court, the propounder, although assigning many other errors, relies, chiefly, upon his contention, duly presented by assignments of error, that there was no evidence from which the jury could find that the signature of Mary Cooper on said paper-writing, is a forgery. In view of our decision of the question presented by this appeal, it is not necessary for us to consider or pass upon assignments of error based upon exceptions pertinent to the issues, which under instructions of the court, were not answered by the jury.

The only evidence in behalf of the propounder, with respect to the execution of said paper-writing by Mary Cooper, was the testimony of Walter J. Harris, and Emma Harris, his wife. They both testified that said paper-writing, including the signature of Mary Cooper, was written by Walter J. Harris, at her home, and at her request, on 4 October, 1927. The signature of Mary Cooper on said paper-writing appears as follows: “Mary (her X mark) Cooper.” Both witnesses testified that Mary Cooper touched the pen with which Walter J. Harris made the mark appearing between the words “Mary” and “Cooper,” and that she requested each of them to witness her signature. They further testified that Walter J. Harris delivered said paper-writing after it had been executed by her, to Mary Cooper and that they then left her house. There was no evidence tending to show that any one saw the said paper-writing during the lifetime of Mary Cooper, after 4 October, 1927. Charlie Williams, who is named in said paper-writing as the sole legatee and devisee of all the property of Mary Cooper, testified that he did not see said paper-writing and did not know of its existence until several days after the death of Mary Cooper, when he found it, in the wood shed, among her bed clothes which had been taken from the house to the wood shed to be laundered. He had been informed after the death of Mary Cooper by Walter J. Harris that he had written a paper-writing for her prior to her death, but he did not know that said paper-writing purported to be a will, bequeathing and devising all her property to him. He did not consult an attorney about this paper-writing until nearly a month after he discovered it in the wood shed and was informed by Walter J. Harris that he had written said paper-writing for Mary Cooper prior to her death. There was evidence tending to show that in the meantime, after he found the paper-writing, Charlie Williams had surrendered the property of Mary Cooper to *422E. P. Stowe, who claimed tbe same as tbe executor o£ Mary Cooper, under tbe will probated on 26 October, 1927, and tbat be bad said on several occasions tbat Mary Cooper bad willed everything to bim, but tbat be “did not have it in black and white.” There was evidence in behalf of tbe propounder tending to show tbat on 4 October, 1927, Mary Cooper bad sufficient mental capacity to make a will.

There was evidence in behalf of tbe caveator tending to show tbat on 4 October, 1927, Mary Cooper did not have mental capacity sufficient to make a will. Dr. G. C. Wingate, a practicing physician of Charlotte, N. C., testified tbat be visited Mary Cooper, professionally, on Sunday, 2 October, and on Tuesday, 4 October, 1927; tbat on said days she bad acute dysentery, and was toxic; tbat tbe absorption of tbe poison affected her nervous system so tbat she was incapable of attending to her affairs. She was decidely worse on Tuesday, tbe 4th, than on Sunday, tbe 2d. In tbe opinion of this witness, tbe deceased was incapable of making a will at any time from Tuesday, tbe 4th, to Sunday, tbe 9th of October, when she died.

W. H. Hunnicutt, a police officer of tbe city of Charlotte, testified tbat be went to tbe home of Mary Cooper, on or about 26 October, 1927, and read to Charlie Williams tbe will of Mary Cooper, probated on 26 October, 1927, by which all her property was bequeathed and devised to E. P. Stowe; that Charlie Williams, after witness bad read tbe said will to bim, stated tbat be was willing to turn everything over to Stowe, without any trouble. Charlie Williams said nothing about another will, under which be claimed tbe property of Mary Cooper.

Jim McConnor, a blacksmith, testified tbat Charlie Williams was at bis shop on 26 October, 1927, and then said tbat Mary Cooper bad willed everything to bim; tbat nothing was going to Ed Stowe. He said tbat be did not have it in black and white, but tbat be bad been told by tbe white folks tbat be did not need it in black and white.

Tbe foregoing evidence was properly submitted to tbe jury upon tbe first issue. Its credibility and probative value was for tbe jury to determine, as tbe court carefully instructed them.

Tbe contentions of both propounder and caveator, upon all tbe evidence pertinent to tbe first issue, were fully and clearly stated in tbe charge of tbe court. We find no error, prejudicial to tbe propounder, in tbe instructions to tbe jury upon this issue. It is not material to tbe disposition of this appeal, to consider or decide assignments of error pertinent to tbe issues which under tbe instructions of tbe court were not answered by tbe jury. Tbe answer of tbe jury to tbe first issue is sufficient to support tbe judgment, which must be affirmed.

As tbe jury has found tbat tbe signature of Mary Cooper on tbe paper-writing dated 4 October, 1927, and propounded by Charlie Wil*423liams, as ber last will and testament, is a forgery, we do not discuss the question as to whether or not this proceeding is a collateral attack upon the probate and record of the last will and testament of Mary Cooper, under which E. P. Stowe, the caveator in this proceeding is the sole legatee and devisee of all her property. If the paper-writing dated 4 October, 1927, and propounded in this proceeding as her last will and testament, had been probated, it could not have been construed as a codicil to the will probated on 26 October, 1927. It would have had the effect of vacating and rendering void the said will.

Whether a will which has been duly probated in common form and recorded as the last will and testament of the testator can be vacated and rendered void by the probate of another paper-writing, subsequently executed, by the testator, as his last will and testament, is not presented by this appeal. This question would have been presented for our decision, if the jury had answered the issues in accordance with the contentions of the propounders and judgment had been rendered accordingly.

No error.

Stacy, O. J., dissents.