Ravenel v. Shipman , 271 N.C. 193 ( 1967 )

155 S.E.2d 484 (1967) 271 N.C. 193

Thomas P. RAVENEL, Executor of the Estate of Frances Randolph Archer, Deceased
v.
Frances R. SHIPMAN et al.

No. 689.

Supreme Court of North Carolina.

July 24, 1967.

Douglas, Ravenel, Hardy & Crihfield, Greensboro, for plaintiff appellee.

York, Boyd & Flynn by David I. Smith, Greensboro, for Glade Valley School, Inc., defendant appellant.

Cooke & Cooke, Greensboro, for Peace College of Raleigh, Inc., defendant appellant.

Z. V. Turlington, Mooresville, for Barium Springs Home for Children, defendant appellant.

Thornton H. Brooks, Greensboro, for The Presbyterian Home, Inc., defendant appellant.

SHARP, Justice.

The theory of this action is that the item found on the back of page 5 of Miss Archer's will is a part thereof and that plaintiff is entitled to have the court construe this provision. Appellants concur in this theory and contend that, by implication, the item is a bequest to them of sums of money in the amount set opposite their respective names. Appellee, however, contends that the so-called bequest is void for indefiniteness.

The item in question contains no dispositive expression. That Miss Archer knew the appropriate language to use in making a testamentary gift is shown in each of the bequests appearing on pages 2 and 3 of her will. In every instance, she wrote: "I bequeath * * *," "I give * * *," or "I leave * * *." It would be necessary for us to imply one of these phrases to make a bequest out of the notation on the reverse side of page 5. "(T)he doctrine of devise or bequest by implication is well established in our law." Finch v. Honeycutt, 246 N.C. 91, 98, 97 S.E.2d 478, 484. The law, however, does not favor either, and dispositive words will be interpolated "only when it cogently appears to be the intention of the will. (Cites omitted.) Probability must be so strong that a contrary intention ``cannot reasonably be supposed to exist in testator's mind,' and cannot be indulged merely to avoid intestacy." (Emphasis added.) Burney v. Holloway, 225 N.C. 633, 637, 36 S.E.2d 5, 8; 57 Am. Jur., Wills § 1153 (1948).

Intestacy would not be avoided here even were we to imply the missing words. The sum of the figures appearing in the item under consideration is $17,000.00. This, plus the $87,300.00 bequeathed, would still leave $25,787.34 to be distributed to the heirs at law under the statutes governing intestate succession. The presumption against partial intestacy (which is but a rule of construction) does not arise therefore. See Entwistle v. Covington, 250 N.C. 315, 108 S.E.2d 603. Unless we imply dispository words the names and figures on the back of page 5 are mere notations—a status which their location strongly suggests. The explanation of their presence there could be that, because of her failing eyesight, testatrix did not realize that she had made notes on the back of her will. It is also entirely possible that Miss Archer contemplated making bequests to defendants and that, when she signed the will on 24 January 1963, she left the blank space above her signature on the last page for the purpose of adding them. All this, however, is pure speculation. "Conjecture is not permitted to supply what the testator has failed to indicate." La Mere v. Jackson, 288 Mich. 99, 103, 284 N.W. 659, 661. Although she lived three years (lacking two days) after she executed her will, testatrix never filled in the blank. The list of those on whom she had specifically bestowed gifts continued to be limited to her blood kin.

We cannot say, therefore, that "a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words". Burcham v. Burcham, 219 N.C. 357, 359, 13 S.E.2d 615, 616. Such a conviction is necessary before the court may supply a defect of dispository words. Without either express or implied words denoting a gift, the item in question fails as a testamentary disposition of property. In re Johnson's Will, 181 N.C. 303, 106 S.E. 841; 1 Wiggins, Wills and Administration of Estates in North Carolina § 74 (1964). If it be deemed a part of Miss Archer's will, it is void for uncertainty, because, in applying the usual rules of construction, the Court "is unable to declare the intention of the testator for the reason that in legal contemplation there was no expression of intention on his part." Fuller v. Hedgpeth, 239 N.C. 370, 376, 80 S.E.2d 18, 22; 94 C.J.S. Wills § 157; 95 C.J.S. Wills § 591 (1956). In the instant case, this is another way of saying that the animus testandi does not appear.

If the questioned item was not intended as a part of Miss Archer's will, its probate was improvidently granted and motion should have been made before the Clerk of the Superior Court to revoke its probate. Once a paper writing has been probated as a will, every part of it stands until set aside by the appropriate tribunal. G.S. § 31-19. 1 Wiggins, supra, § 113; 4 Strong, N.C. Index, Wills § 8 (1961). Unless the court has been imposed upon, misled, or some inherent or fatal defect appears upon face of the instrument, the attack must be by caveat. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488; In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526. Where, however, the Clerk of the Superior Court has probated as a will a document which has not been executed in accordance with the statutory requirements for probate or which shows on its face that it was not intended as a testamentary disposition of the author's property, or when other jurisdictional requirements for probate are shown to be lacking, the Clerk may revoke his probate. Morris v. Morris, 245 N.C. 30, 95 S.E.2d 110; In re Will of Smith, 218 N.C. 161, 10 S.E.2d 676; In re Johnson's Will, 182 N.C. 522, 109 S.E. 373; Springer v. Shavender, 116 N.C. 12, 21 S.E. 397, 33 L.R.A. 772. Since the Clerk of the Superior Court of each county has original and exclusive jurisdiction of proceedings to probate a will, G.S. § 28-1, he is the tribunal to which a motion is properly made to set aside the probate of a purported will—or part thereof—for any inherent and fatal defect appearing upon the face of the instrument. In re Will of Smith, supra.

This case presents a close question of jurisdiction. Had plaintiff moved the Clerk to revoke the probate of the item in question because the animus testandi was lacking as to it, his authority to strike the notation could have been sustained. In re Will of Smith, supra. The Clerk, however, has no right to exclude any part of a will from probate on any ground which involves the construction of the will where testamentary intent is disclosed. 95 C.J.S. Wills § 319 (1956). Since, however, the parties have treated the writing on the back of page 5 as a part of Miss Archer's will and asked the court to construe it, we treat it likewise and raise no question of jurisdiction ex mero motu. See Spencer v. Spencer, 163 N.C. 83, 88, 79 S.E. 291, 293. In this case, the law would dictate the same result irrespective of procedure. It matters not, therefore, whether the Clerk revoked the probate because the notation failed to disclose the animus testandi or whether the judge, in construing the will, declared the purported bequest void for indefiniteness.

The judgment of the Superior Court was "that the writing appearing upon the reverse side of the fifth page of the will of Frances Randolph Archer does not constitute a valid bequest or bequests to be paid by the executor to the defendants Glade Valley School, Inc., Peace College of Raleigh, Inc., Barium Springs Home for Children, The Presbyterian Home, Inc., and Newsweek, Inc., respectively, or to either of them." This judgment is

Affirmed.