In re Will of Swaim

Wills — Interpretation—Detached Sheets — Subscribing Witnesses— Evidence of Authenticity as a Whole. It is not necessarily required for the validity of a will that several sheets of paper purporting to be one are physically attached together at the time the witnesses subscribe; and it is sufficient if it appears that the several sheets were written by the same person at the same time, were all read to the testator as his will, and were present at the time of the execution, and the papers themselves, by coherence and adaptation, and by their internal sense, bear evidence that, while separate, they were connected in the mind of the testator as a whole.

Appeal by caveators from Daniels, J., at February Term, 1913, of ALEXANDER. A paper-writing purporting to be the last will and testament of M. Swaim was offered for probate before the Clerk of the Superior Court of Alexander County, and a caveat was filed thereto. The paper-writing consists of one sheet, of four pages of legal-cap paper, which pages are in the handwriting of J. L. Gwaltney, Esq., and one sheet of four pages, one page of which sheet was written in the handwriting of said Gwaltney,. detached, the two sheets never having been fastened together. Mr. Gwaltney testified that the paper-writing was in his handwriting; that it was signed in his presence and in the presence of Mr. Carson; they saw the testator sign the paper. The paper-writing was signed by Mr. Swaim and Messrs. Gwaltney and Carson, on the last sheet on the first page thereof, as subscribing witnesses. Mr. Gwaltney folded the paper, put it in an envelope, and, his recollection is, wrote across the envelope, “M. Swaim’s ’Will,” and then handed it to Mr. Swaim. The signature of Mr. Swaim is on the second or detached sheet. W. H. Carson testified tbat be was register of deeds, in 1911, for Alexander County, and bis name, as appears upon tbe sheet of paper, was written by bimself in Mr, Gwaltney’s office, in tbe presence of Mr. Swaim; be signed tbe paper in bis presence and Mr. Gwaltney’s. He signed tbe only sheet tbat be has any recollection of seeing; it was on tbe table. He does not remember there being any other sheet there; it might have been or it might not. Don’t remember seeing but one sheet, and knows nothing about it except tbe sheet be signed. Mr. Gwaltney further testified that both sheets were on the table at the time of the signing by the testator and the witness, and that he read both sheets to Mr. Swaim before he signed his name. The paper begins: “I,‘M. Swáim, of the county and State aforesaid, being of sound mind and disposing memory, knowing the uncertainty of - life and tlie certainty of death, do make, publish, and declare this to be my last will and testament in manner and .form following, to witand the last five lines on the fourth page of the first sheet are: “Item 1. It is my will that after the bequest to my wife has terminated, that all my solvent credits, money and effects of every description (including the tract of land on” — and the first page of the second sheet is as follows: “which Einly ICerly now lives, containing 130 acres, more or less, and upon which he has been living since the death of my daughter Mag, after the death of the said Finly Uerly), shall be converted into money and so distributed among my children as to make them share equal in my effects. ' “Item 8. I hereby constitute my trusted friend, James Watts, my lawful executor, to execute this my last will and testament, and every section and clause thereof, according to the true intent and meaning of the same. “In witness whereof I have hereunto set my hand and seal, in the presence of J. L. Gwaltney and W. H. Carson, who, at my request and in my presence, signed their names as witnesses thereto. This July 1, 1911. All interlineations and erasures made before signing. (Signed) M. Swaim [seal]. Witness: J. L. GwaltNey, ' W. H. CaRSON.” It was admitted that Mr. Swaim was of sound mind, and that there was no undue influence, the caveators resting their case upon the position that as there was no signature of the testator or of the witnesses on the first sheet of paper, and as it was not attached to the second, it was no part of the will. There was a verdict in favor of the propounders, and the caveators appealed from the judgment rendered thereon.