Pounds v. Litaker , 235 N.C. 746 ( 1952 )

71 S.E.2d 39 (1952) 235 N.C. 746

POUNDS et al.
v.
LITAKER et al.

No. 751.

Supreme Court of North Carolina.

June 11, 1952.

Ratcliff, Vaughn, Hudson, Ferrell & Carter and Womble, Carlyle, Martin & Sandridge, Winston Salem, for propounders, appellants.

E. T. Bost, Jr., H. W. Calloway, Jr., Concord, for caveators, appellees.

DENNY, Justice.

This appeal involves the question whether or not the engraved monogram of Mrs. Efird, which appears on the paper writing under consideration, may be construed to be her signature. If such monogram is insufficient as a signature within the meaning of the statute with respect to the execution of holographic wills, then it will be unnecessary to consider the other exceptions presented and argued.

It is provided by statute G.S. § 31-18 that wills must be admitted to probate only in the manner prescribed therein. Subsection 2 of this statute, among other things, provides," "In case of a holograph will, on the oath of at least three credible witnesses, who state that they verily believe such will and every part thereof is in the handwriting of the person whose will it purports to be, and whose name must be subscribed thereto, or inserted in some part thereof."

It is not required by our statute that a holographic will be dated or the place of its execution be stated therein. In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876.

It is likewise held in the above case that where the "words appearing on a paper writing in the handwriting of the deceased person are sufficient, as in the instant case, to constitute a last will and testament, the mere fact that other words appear thereon, not in such handwriting, but not essential to the meaning of the words in such handwriting, cannot be held to defeat the intention of the deceased, otherwise clearly expressed, that such paper writing is and shall be his last will and testament. * * * The words in print appearing on the sheets of paper propounded in the instant case are surplusage. They are not essential to the meaning of the words shown by three credible witnesses to be in the handwriting of Mrs. S. A. Lowrance. These words, without the printed words, are sufficient to constitute a testamentary disposition of property, both real and personal." In re Will of Parsons, 207 N.C. 584, 178 S.E. 78; In re Will of Smith, 218 N.C. 161, 10 S.E.2d 676; In re Will of Wallace, 227 N.C. 459, 42 S.E.2d 520; In re Will of Goodman, 229 N.C. 444, 50 S.E.2d 34.

An instrument, however, may not be probated as a holographic will where it contains words not in the handwriting of the testator if such words are essential to give meaning to the written words of the testator. In re Will of Wallace, supra; In re Will of Smith, supra; In re Wall's Will, 216 N.C. 805, 5 S.E.2d 837.

Our decisions are in accord with what is said in 57 Am.Jur., Wills, section 634, page 433, et. seq.; to wit, "The general rule under statutes validating holographic wills is that every word in such a will must be in the handwriting of the testator. * * * A will in the form of a holographic instrument is invalidated by the appearance therein of words inserted by a rubber stamp or in the handwriting of one other than the testator, which have been adopted by him as a part of his will. An instrument which contains printed matter is not entitled to probate as a holographic will where the printed matter aids in expressing the intention of the testator. * * The mere fact the testator used a blank form whether of a will or some other instrument does not invalidate an otherwise valid will if the printed words may be entirely rejected as surplusage. * * * There is however, authorities to the effect that a testamentary instrument is valid as a holographic will, although it contains words not in the handwriting of the testator, if such words are not necessary to complete the instrument in the holographic form, and do not affect the meaning."

In the present case, if we treat the engraved monogram, which is not in the handwriting of the testatrix, as surplusage, the propounders must fail.

In view of the statutory provisions with respect to the probate of a holographic will, and our decisions pertaining thereto, we hold that the engraved monogram of the testatrix, appearing on the instrument offered for probate in solemn form as her last will and testament, may not be considered as a part thereof. The monogram is not in her handwriting and may not be construed to be her signature within the meaning of G.S. § 31-3 and § 31-18, subsection 2.

The judgment of the court below is affirmed.