
    J. T. HARRIS et al. v. C. H. MARTIN, Administrator, et al.
    (Filed 1 April, 1909.)
    1. Pleadings — Evidence—Wills—Testator—Identification.
    The propounders of a will are not required to prove the identity of the one who signed the will as the testatrix, when the allegations are that the signature of the testatrix was obtained by duress, undue influence, etc., and that she did not have sufficient mental capacity, and there is no allegation that she did not sign the will.
    2. Wills — Evidence—Testator—Identification.
    Testimony of an attorney and witness to a will that they were sent for and introduced to a person, whom they had not met before, and who answered to the name of the testatrix, and that the will was drafted and executed by such person as the testatrix named in the will, is prima facie evidence that the person signed was the executrix named, and 'sufficient to take the case" to the jury.
    ActioN tried before Neal, J., and a jury, at October Term, 1908, of Wake, involving tbe validity of a will.
    Caveators appealed.
    
      Aycock & Winston, R. N. Simms and J. N. Holding for plaintiffs.
    
      Armistead Jones & Son and Pou & Brooks for defendants.
   Clark, C. J.

Tbis is a caveat of the will of Sarab 0. Harris. Tbe complaint alleges tbat said paper writing “was not and is not the last will and testament of the said Sarab C. Harris, deceased, for the reason tbat the signature of the said Sarab 0. Harris thereto was obtained by undue and improper influence and duress upon the said Sarab 0. Harris,” and as a further ground alleges tbat “at the time of the execution thereof and continuously thereafter until her death, the said Sarab C. Harris did not have the capacity to make and execute a will, for the reason tbat she was not of a sound and disposing mind and memory at and during said time.”

W. H. Ruffin, Esq., attorney at law, of Louisburg, testified tbat be received a message from Mrs. Jennie Martin, who resided in tbe same town, tbat her sister, Miss Harris, wished him to come to ber (Mrs. Martin’s) bouse to draw Miss Harris’ will; tbat be went and was introduced by Mrs. Martin to Miss Harris as ber sister; tbat Mrs. Martin then stated to witness tbat tbis was ber sister, wbo wanted ber will drawn, and Mrs. Martin stated wbat tbe terms of .tbe will were; tbat tbe witness took notes, tben turned to Miss Harris, read tbe notes to ber and asked ber was tbat tbe way slie wished tbe will drawn, and tbat sbe replied “Tes”; tbat tbe witness went off and drew tbe will, and returned, bringing, as requested, Dr. O. L. Ellis as a witness; tbat Miss Harris and Mrs. Martin came into tbe room and witness read tbe will to Miss Harris and asked ber if tbat was tbe way sbe wished ber will drawn, and sbe said “Yes,” and requested him and Dr. Ellis to witness, it; tbat she then signed tbe will in their presence, and they signed it in ber presence. On cross-examination witness said be met Miss Harris only on those two occasions and knew ber only by tbe introduction above stated, and tbat sbe seemed physically and mentally capable of making a will.

Dr. Ellis, a practicing physician, testified tbat be accompanied Mr. Euffib on tbis last occasion and was introduced to Miss Harris, whom be bad never met before and knew only by tbis introduction; tbat Mr. Euffin read tbe will over to ber, and sbe said tbat was ber will; tbat sbe signed it in tbe jjresence of Mr. Euffin and himself, and they signed it as witnesses in ber presence ; tbat be was asked to sign by Mr. Euffin in ber presence. .

The cavea.tors introduced no testimony. The jury found tbat tbe paper writing was tbe last will and testament of Sarah C. Harris.

The caveators contend tbat tbe court should have instructed the jury, as requested, tbat there was not sufficient evidence to answer tbe issue “Yes,” and tbat tbey should answer it “No.” There was no evidence whatever tending to show, as the cave-ators contend, that another person had fraudulently and falsely impersonated Miss Harris. There was no allegation of that nature in tbe complaint. On tbe contrary, it was averred tbat “the signature of Sarah 0. Harris thereto was procured by undue influence and duress,” and that “at the time of execution” of said will “the said Sarah 0. Harris did not have the capacity to make and execute a will.” Upon the averments in the complaint, there was nothing that required the respondents to put in evidence an identity that was not questioned, and which, indeed, was admitted by the pleadings. Indeed, when the pro-pounders rested, after putting in evidence the formal execution of the will, it must have been a distinct surprise to raise the question of identity of the testator without any allegation in the complaint.

The testatrix announced herself as Miss Sarah C. Harris, not only by accepting the introduction, but by signing herself by that name. Where a cartman took goods to the house of L., not ■knowing the owner, asked a person he found there for Mr. L., and the person said “I am Mr. L.,” it was held by Lord LyntL Tiurst that this was prima facie evidence of the identity of Mr. L. Wilton v. Edwards, 6 Oar. and P., 677; Harris Identification, secs. 75, 99, 115. When one is asked who he is, his reply that he is S. is some evidence of that fact. Reynolds v. Staines, 2 C. and K., 745. Where, at an auction, a person was addressed by several as “E.” and his name was so written upon the boafd, Wilde, G. Jheld that this was prima facie evidence that such was his name. Collier v. Nokes, 2 C. and K., 1012.

The facts in evidence were sufficient to submit the ease to the jury upon the identity of the testator, and, there being no evidence to the contrary, it satisfied the jury. It would have been easy for the caveators, the nearest relatives of the deceased, to have shown from the description of her person, from her handwriting, by their knowledge of her whereabouts at that time, and other circumstances, whatever reason, if any there was, to throw doubt upon the identity of the testator. The transaction took place in the usual manner, the witnesses were two gentlemen of standing in their respective professions, and there is nothing whatever in the attendant circumstances to cast a doubt upon the bona fides of the transaction.

Strangers must frequently execute wills when no better known to the witnesses than the testator was in this case. Had the question of the identity of testator been raised by the pleádings, doubtless the proof would have been complete, but as it was there was a prima facie case and no evidence to the contrary. The other exceptions require no discussion.

No Error.  