Brickhouse v. Brickhouse , 110 N.C. App. 560 ( 1993 )

EAGLES, Judge.

Plaintiff argues that the trial court erred because there was insufficient evidence that Lucy B. Carr was a competent attesting witness “since her only purpose at the time of subscribing the will was to be a witness to the testator’s mark and to take the acknowledgement of the testator and two subscribing witnesses.” In addition to noting that Carr witnessed the testator’s mark on two different occasions, defendant argues that this is a self-proving will and that from the self-proving “acknowledgement taken by Carr and her testimony at trial, it is clear that she was in fact a third attesting witness in that she witnessed the same acts as did Margie Brickhouse and G. Blair Harry as required by G.S. 31-3.3.”

G.S. 31-3.3 provides:

(a) An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section.

(b) The testator must, with intent to sign the will, do so by signing the will himself or by having someone else in the testator’s presence and at his direction sign the testator’s name thereon.

(c) The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately.

(d) The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.

Plaintiff argues that the attesting witness must “intend” to witness the will of the testator and that Ms. Carr did not have this intent when she witnessed the testator’s mark. However, our research has failed to reveal this type of “intent” requirement in G.S. 31-3.3 or elsewhere in the law. We note that, unlike other states, there is no provision in our statutes requiring the testator to publish his or her will to the attesting witnesses. See N. Wiggins, 1 Wills and Administration of Estates in North Carolina, § 90 (2nd Ed. 1983).

The fact that Ms. Carr witnessed the testator’s mark and signed the will in a location different from the other two witnesses does not preclude Ms. Carr, on this record, from being considered an attesting witness. In Re Will of Williams, 234 N.C. 228, 66 S.E.2d 902 (1951). Evidence that the testator made his mark in the presence of the witnesses is sufficient to infer that the testator requested the witnesses to attest the testator’s signature. In re Will Of King, 80 N.C. App. 471, 476, 342 S.E.2d 394, 397, disc. review denied, 317 N.C. 704, 347 S.E.2d 43 (1986); In Re Will of Kelly, 206 N.C. 551, 174 S.E. 453 (1934). Here, Ms. Carr testified and stated in her affidavit that she was a witness to the testator’s mark at the request of the testator, who declared the document to be his will. Ms. Carr further testified:

. . . [H]e [testator] was lying in a hospital bed with the bed raised some. Mr. Harry [testator’s attorney] said hello to him and told him why we were there, read the papers to him, every word of them and asked him if that was what he wanted and Mr. Brickhouse [testator] said, yes, it was.

Mr. Harry said do you want us to be your witnesses and he said — I was there to witness all their signatures and he said, yes. And he said, but I cannot write my name. I’m too weak. The bed was raised a little higher so he was more in a sitting position. Mr. Harry told him that that was all right he could make an “X” mark and I would witness his “X” mark for him.

The papers were handed to him with a pen. He made his “X” mark on all three documents and they were handed to me. I witnessed his “X” mark on all the documents.

■Based on the record before us, we conclude that the trial court did not err in finding that Ms. Carr was an attesting witness. This assignment of error fails.

Next, plaintiff argues that there was insufficient evidence to support the trial court’s award of $10,500.00 to defendant as back rent for the period that plaintiff was in possession of the property. We disagree.

In Cotton v. Stanley, 86 N.C. App. 534, 539, 358 S.E.2d 692, 695, disc. rev. denied, 321 N.C. 296, 362 S.E.2d 779 (1987) this Court stated:

The fair rental value of property may be determined “by proof of what the premises would rent for in the open market, or by evidence of other facts from which the fair rental value of the premises may be determined.” Brewington v. Loughran, 183 N.C. 55[8], 565, 112 S.E. 257, 260 (1922) (emphasis added); Sloan v. Hart, 150 N.C. 269, 275, 63 S.E. 1037, 1039 (1909). . . . The rent agreed upon by the parties when entering into the lease is some evidence of the property’s “as warranted” fair rental value, but it is not binding. See Martin v. Clegg, 163 N.C. 528, 530, 79 S.E. 1105, 1106 (1913).

... A party is not required to put on direct evidence to show fair rental value. Accord, Martin v. Clegg, 163 N.C. 528, 79 S.E. 1105.

(Emphasis added.) Here, the evidence showed that plaintiff paid $300.00 monthly rent to the testator until the testator died. After the testator died, the record shows that defendant sent plaintiff a letter stating that the rent would be $400.00 per month beginning on 1 January 1990. Thereafter, plaintiff continued to retain possession of the property. Defendant testified that $400.00 was the fair market rental value of the property. Plaintiff failed to present any evidence to contradict defendant’s valuation. Accordingly, this assignment of error fails.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

Judges WYNN and JOHN concur.