In Re the Will of Williams , 234 N.C. 228 ( 1951 )

66 S.E.2d 902 (1951) 234 N.C. 228

In re WILLIAMS' WILL.

No. 162.

Supreme Court of North Carolina.

October 10, 1951.

E. R. Tyler, Roxobel, Gay & Midyette, Jackson, for propounders appellees.

Charles W. Williamson, Henderson, Floyd T. Hall, Rocky Mount, P. H. Bell, Plymouth, for caveators appellants.

WINBORNE, Justice

The pivotal question here presented is this: In the light of the testimony of the two subscribing witnesses, who testified in the trial below, is the paper writing propounded for probate "signed" by Hannah Williams, Sr., within the purview of G.S. § 31-3 which prescribes the requirements for formal execution of a written will with witnesses? The answer is "Yes".

In this State it is provided by statute G.S. § 31-3 that "No last will or testament shall be good or sufficient, in law, to convey or give any estate, real or personal, unless such last will shall have been written in the testator's lifetime, and signed by him, or by some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least, no one of whom shall be interested in the devise or bequest of the estate * * *".

This statute is similar in purport to the statute G.S. § 22-2 pertaining to contracts requiring writing, generally known as the statute of frauds, which declares that "All contracts to sell or convey any lands * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized."

That the name of the testator may be signed to the paper writing by some other person in his presence and by his direction is expressly authorized by the statute G.S. § 31-3. Such is the case also in instances to which the provisions of G.S. § 22-2 apply. The principle is recognized in Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902, 12 L.R.A. 205; In re Johnson's Will, 182 N.C. 522, 109 S.E. 373; State v. Abernethy, 190 N.C. 768, 130 S.E. 619.

And with respect to the signing by the testator, or by "the party to be charged", as the case may be, this Court in interpreting the statutes, has held that when a signature is essential to the validity of the instrument, it is not necessary that the signature appear at the end unless the statute uses the word "subscribe". Devereux v. McMahon, supra; Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104; Richards v. W. M. Ritter Lumber Co., 158 N.C. 54, 73 S.E. 485; Boger v. Cedar Cove Lumber Co., 165 N.C. 557, 81 S.E. 784; Burriss v. Starr, 165 N.C. 657, 81 S.E. 929; Peace v. Edwards, 170 N.C. 64, 86 S.E. 807; Alexander v. Johnston, 171 N.C. 468, 88 S.E. 785; State v. Abernethy, supra; Corp. Comm. v. Wilkinson, 201 N.C. 344, 160 S.E. 292; Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 352; In re Will of Goodman, 229 N.C. 444, 50 S.E.2d 34.

In the Richards case, supra, Clark, C. J., writing for the Court, declared that "this has always been ruled in this state in regard to wills, as to which the signature may appear anywhere". This declaration is recognized in Boger v. Cedar Cove Lumber Co., supra; Burriss v. Starr, supra; Peace v. Edwards, supra; Alexander v. Johnston, supra.

And in Boger v. Cedar Cove Lumber Co., supra [165 N.C. 557, 81 S.E. 785], it is said that "the authorities make a distinction between statutes requiring instruments to be signed and those requring them to be subscribed, holding with practical unanimity in reference to the first class that it is not necessary for the name to appear on any particular part of the instrument, if written with the intent to become bound, and as to the second class that the name must be at the end of the instrument".

In the light of these principles, the testimony of the subscribing witnesses, in the present case, is sufficient to support a finding by the jury that the paper writing in question was signed in the name of Hannah Williams, Sr., by Rev. L. N. Neal in her presence and at her request, within the meaning of the statute G.S. § 31-3. The words "will of" preceding the name of Hannah Williams, Sr., given their ordinary meaning, tend to identify the paper writing as her will, and to indicate that she knew it to be her will.

All other questions stated in the brief of appellants have been given due consideration, and each is found to be without merit.

Hence in the judgment below we find no error.