In Re the Will of Mucci , 287 N.C. 26 ( 1975 )

213 S.E.2d 207 (1975) 287 N.C. 26

In the Matter of the WILL of Lawrence Adolph MUCCI, Deceased.

No. 12.

Supreme Court of North Carolina.

April 14, 1975.

G. Edison Hill, Asheville, for the propounder, George H. Johnson, Jr.

Morris, Golding, Blue & Phillips by James F. Blue, III, Asheville, for Mary E. Mucci, party aligned with the propounder.

Richard B. Ford, Asheville, for caveators.

EXUM, Justice.

We agree with the conclusion in Judge Hedrick's opinion, 23 N.C.App. 428, 209 S.E.2d 332 (1974), that there is no evidence in this record from which a jury could find that the letter in question was a codicil to Mucci's attested will. The Court of Appeals erred, however, in reversing the entry of a directed verdict in favor of the caveators and remanding this case for further proceedings.

Before any instrument can be probated as a testamentary disposition there must be evidence that it was written animo testandi, or with testamentary intent. In re Perry, 193 N.C. 397, 137 S.E. 145 (1927); In re Johnson, 181 N.C. 303, 106 S.E. 841 (1921). The maker must intend at the time of making that the paper itself operate as a will, or codicil; an intent to make some future testamentary disposition is not sufficient. In re Johnson, supra; In re Bennett, 180 N.C. 5, 103 S.E. 917 (1920).

With regard, moreover, to holographic instruments, the necessary animo testandi must appear not only from the instrument itself and the circumstances under which it was made, Spencer v. Spencer, 163 N.C. 83, 79 S.E. 291 (1913), but also from the fact that the instrument was found among the deceased's valuable papers after his death or in the possession of some person with whom the deceased had deposited it for safekeeping. In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155 (1962); In re Bennett, supra. For complete statutory requirements see G.S. § 31-3.4.

Where a holographic instrument on its face is equivocal on the question of whether it was written with testamentary intent and there is evidence that the instrument was found among the valuable papers of the deceased the animo testandi issue is for the jury and parole evidence relevant to the issue may be properly admitted. In re Westfeldt, 188 N.C. 702, 125 S.E. 531 (1924); In re Southerland, 188 N.C. 325, 124 S.E. 632 (1924); In re Will of Harrison, 183 N.C. 457, 111 S.E. 867 (1922). If there is nothing on the face of the holograph from which a testamentary intent may be inferred or evidence is lacking that the instrument was found among the deceased's valuable papers or placed by him in the possession of some other person for safekeeping, the instrument may not, as a matter of law, be admitted to probate. In re Perry, supra; In re Johnson, supra; In re Bennett, supra; Spencer v. Spencer, supra.

While we do not decide this question, it is arguable that Mucci's letter, standing alone, contains language from which a testamentary intent may be inferred. There is, however, no evidence that the letter was found among his valuable papers or placed by him in the possession of someone for safekeeping. All the evidence is to the effect that he simply mailed the letter to Johnson, his executor and attorney, who three months before had prepared a formal, attested will which Mucci had duly executed. There is no reference in the letter to the formal will. There are no special instructions to Johnson with regard to the handling of the letter itself. There is nothing to indicate that Mucci intended for Johnson to keep the letter, preserve it, or treat it differently than he would any other letter. That Mucci simply mailed the letter to his attorney and executor is not enough for a jury to infer that he had placed it with him for safekeeping as a codicil. That Mucci simply mailed the letter without any special instructions with regard to it as a document tends to show that he thought of it, not as a codicil to his will, but simply an instruction to his attorney to prepare such a codicil.

In re Bennett, supra, was a caveat proceeding where a letter to the deceased's friend received by the friend in the mail was offered for probate. The last paragraph in the letter read:

"Iff aney thing happens to me I want you to have ever thing I got in the world and I will have it fixed iff I can have the chance for you have done moore for me than anye one on earth,

from one who love you, G. M. Bennett."

This Court held that the letter could not, as a matter of law, be probated as a will. We said:

"This letter bears no evidence on its face, nor is there any proof otherwise that Bennett intended that it should be deposited with the propounder, or any one else, for safe keeping. There is no request that he keep or preserve the letter, or that he do anything more with it than he would with any ordinary or casual letter received from him, or any other person.

* * * * * *

"There is also nothing in the language used which shows an intention to deposit the paper ``with some person as his will,' but is a casual letter, written and mailed only as is a letter in any correspondence, and not attended by the solemnity which is, and should be, required in executing so important an instrument as a will." 180 N.C. at 10, 11, 103 S.E. at 919, 920.

Alston v. Davis, 118 N.C. 202, 24 S.E. 15 (1896) held that a letter mailed to the deceased's sister could be probated as a will saying that the mailing of the letter itself was sufficient to draw an inference that the deceased gave it to her sister for safekeeping and that it was not necessary that any express language indicating such an intent be used in the letter. There was, however, a forceful dissent by Furches, J., and the holding of the case was expressly overruled in Spencer v. Spencer, supra. In Spencer, an action to recover a portion of insurance proceeds, plaintiff relied on a letter the deceased, his brother, had written to him which plaintiff contended was a codicil to his brother's previously executed will. The letter, 163 N.C. at 86, 79 S.E. at 292, read:

"Brother Alex:

I am sorry you had to go under. I hope you will save something out of it. If I die I want you to have your part of the five thousand insurance I took out for Spencer Brothers. I have written Brother George to see that you get it.

We will sail for southern Italy to-morrow, and will go up through the different countries to London, and then home. Will be gone ten weeks.

Give my love to Mame and Bettie.

Good-bye, Your Brother, Jones."

This Court affirmed a judgment of nonsuit entered in the Superior Court and held, on several grounds, that the letter relied on could not as a matter of law, operate as a codicil. We said:

"It is essential that it should appear from the character of the instrument, and the circumstances under which it is made, that the testator intended it should operate as his will, or as a codicil to it.

"In the case at bar the testator had made his will . . .. This so-called codicil is a letter written to his brother immediately after he had executed his will, and makes no reference to it. It is scarcely probable that the testator regarded or intended such a letter to be in any sense a part of his will." 163 N.C. at 88, 79 S.E. at 293.

In cases relied on by propounder the letters which were admitted to probate were, in each instance, found among the valuable papers of the deceased. Rountree v. Rountree, 213 N.C. 252, 195 S.E. 784 (1938); In re Will of Thompson, 196 N.C. 271, 145 S.E. 393 (1928); In re Westfeldt, supra; Wise v. Short, 181 N.C. 320, 107 S.E. 134 (1921); In re Will of Ledford, 176 N.C. 610, 97 S.E. 482 (1918). In Rountree this Court pointed out, "He undoubtedly intended the letter as his will. He did not mail it, but placed it in his safe among his valuable papers." 213 N.C. at 254, 195 S.E. at 785. (Emphasis supplied.)

The declarations made at sundry times by Mucci relied on in some instances by the propounder and in others by the caveators make no difference in result. These were to the effect that after Mucci wrote the letter, he first agreed to execute a formal codicil and then failed to do so, that he intended at some time to make a testamentary gift in favor of Betty, and that he said a few days before his death under considerable prodding that Betty had been provided for. The issue is not whether he intended to provide for Betty, or later changed his mind, or still later thought that he had somehow provided for her. The issue is whether Mucci at the time he wrote it intended for the letter itself to be a testamentary instrument and placed it as such an instrument in the possession of Johnson for safekeeping. None of his declarations are sufficiently probative to warrant an affirmative answer.

Since there is insufficient evidence upon which to probate the letter, was it proper for the trial court to enter a directed verdict in favor of the caveators and adjudge without submitting the question to a jury that the letter was not a codicil to the will of the deceased? Judge Hedrick was of the opinion that this was error and ordered that the case be remanded to the Superior Court so that a jury could be peremptorily instructed on the issue. He relied on cases as does the propounder here which state the rule that inasmuch as a caveat proceeding is in rem, motions for nonsuit or requests for a directed verdict are not proper. In re Will of Redding, 216 N.C. 497, 5 S.E.2d 544 (1939); In re Westfeldt, supra; In re Hinton, 180 N.C. 206, 104 S.E. 341 (1920); In re Will of Hodgin, 10 N.C.App. 492, 179 S.E.2d 126 (1971). In all of these cases, however, the propounders had satisfied the burden initially placed upon them to come forward with evidence tending to show a testamentary disposition. The real issues in Redding were whether the testator had testamentary capacity and whether the paper writing was procured by undue influence. In Westfeldt the issue was whether there was the requisite testamentary intent, but the court found there was ample evidence to go to the jury on that question. In Hinton the issue was whether the testator had testamentary capacity, and in Hodgin, whether certain marks made on an attested will were put there by the testator with intent to revoke the will.

In the case of In re Will of Roediger, 209 N.C. 470, 184 S.E. 74 (1936), the question was whether the testator had by obliterating certain portions of a previously attested will intended to revoke it. Most of the facts were stipulated by the propounder and the caveators who agreed to waive a jury and allow the trial judge to hear the evidence and find such additional facts as would be necessary to a judgment. The trial judge did so and adjudged that the interlineations and erasures should be given no effect and the writing probated as if they had not been made. This Court remanded the case on the ground that it would have to be submitted to a jury, saying:

"When a caveat to the probate in common form of a paper writing propounded as the last will and testament of a deceased person has been filed as provided by C.S., 4158, as amended and the proceeding which was begun before the clerk of the superior court having jurisdiction, has been transferred to the superior court for trial of the issue raised by the caveat at term time, as provided by C.S., 4159, the issue must be tried by a jury and not by the judge. A trial by jury cannot be waived by the propounder and the caveator. Nor can they submit to the court an agreed statement of facts, or consent that the judge may hear the evidence and find the facts determinative of the issue. The propounder and the caveator are not parties to the proceeding in the sense that they can by consent relieve the judge of his duty to submit the issue involved in the proceeding to a jury.

"In the instant case, it was error for the judge to render judgment on the facts agreed upon by the propounder and the caveator, and supplemented by the facts found by him, with their consent. The proceeding was in rem, and could not be controlled by the propounder and the caveator, even with the consent and approval of the judge. In that respect it is distinguishable from a civil action." 209 N.C. at 476, 184 S.E. at 77-78.

These cases, Redding, Westfeldt, Hinton, Hodgin, and Roediger, taken together, stand for the proposition that once a caveat is filed and the proceeding to probate is transferred to superior court for trial there can be no probate except by a jury's verdict. The trial court may not, at least where there are any factual issues, resolve those issues even by consent and adjudge that the disposition in question is testamentary and entitled to probate as a matter of law.

There are cases in which the writing under consideration was held as a matter of law to be entitled to probate without the intervention of the jury. Rountree v. Rountree, supra; In re Will of Thompson, supra; Wise v. Short, supra; In re Will of Ledford, supra. The first three of these cases were not strictly caveat proceedings. Rountree was a proceeding under the Declaratory Judgment Act to determine the character of a writing which had already been probated in common form. Thompson was an appeal from the clerk who had refused to admit the writing to probate. There was no caveator and the matter was heard in chambers in superior court. Wise v. Short was a civil action to enforce a contract for the sale of land where the validity of defendant's title depended upon whether the writing in question was a will. Ledford was a caveat proceeding. All of the facts, however, were judicially stipulated and the parties agreed that the question was one of law for the court. The procedure used in Ledford seems to conflict with dictum quoted above from In re Will of Roediger. Ledford is distinguishable, however, in that there the trial court did not make any factual findings.

Where, as here, propounder fails to come forward with evidence from which a jury might find that there has been a testamentary disposition it is proper for the trial court under Rule 50 of the Rules of Civil Procedure to enter a directed verdict in favor of the caveators and adjudge, as a matter of law, that there can be no probate. In re Johnson, supra. In Johnson, a proceeding in solemn form for the probate of a paper writing, the trial court after hearing evidence for the propounder adjudged without a jury's intervention that the paper writing was not a will and refused to permit it to be probated. This Court affirmed, saying:

"The refusal to submit an issue as to the intention of the deceased was not erroneous, as this intent must be gathered from the letter and the surrounding circumstances, and a finding of the jury contrary to the language used in the letter could not be sustained." 181 N.C. at 306, 106 S.E. at 842.

In two cases, where there was no evidence of testamentary intent this Court, reviewing jury verdicts in favor of propounders, remanded the cases for peremptory instructions in favor of caveators. In re Perry, supra; In re Bennett, supra. Perry and Bennett, however, do not hold that in such cases the trial court may not enter a directed verdict in favor of the caveator. We said in Bennett:

"The learned judge who presided at the trial . . 27 should have directed the jury to answer the issue in favor of the caveators, or, in other words, ``No,' as there was no evidence, in a legal sense, that the paper-writing, which was propounded. . . was the will of George M. Bennett . . .." 180 N.C. at 8, 103 S.E. at 918.

Rather than direct or peremptorily instruct the jury to do what is essentially a mechanical act the better practice is for the trial court to enter a directed verdict pursuant to Rule 50 of the Rules of Civil Procedure.

The judgment of the trial court is correct. The decision of the Court of Appeals is

Reversed.