Alexander v. . Johnston , 171 N.C. 468 ( 1916 )

The right to dispose of property by will is statutory (Pullen v. Comrs.,66 N.C. 361), and can only be exercised by following the requirements of the statute. In re Jenkins Will, 157 N.C. 429.

These requirements, prescribed by the legislative department for the execution of a will, are essential, and cannot be disregarded. They are the measure of the exercise of the right, and the heir cannot be deprived of his inheritance except in the way pointed out.

In determining the construction of a will, the controlling idea is to discover and give effect to the intent of the testator, but when the question of its formal execution is at issue we look to the intent of the Legislature (In re Seamon, 2 A. and E. Anno Cases, 726), and this intent must be gathered from the language, and from a consideration of the existing law, the evils intended to be remedied, and the remedy applied.

Blackstone says, page 14: "There are three points to be considered in the construction of all remedial statutes — the old law, the mischief, and the remedy; that is, how the common law stood at the (471) making of the act, what the mischief was for which the common law did not provide, and what remedy the Parliament hath provided to cure this mischief. And it is the business of the judge so to construe the act as to suppress the mischief and advance the remedy."

Our Court has also said, referring to the statute as to holographic wills: "The provisions of the statute are, of course, mandatory and not directory, and, therefore, there must be a strict compliance with them before there can be a valid execution and probate of a holographic script as a will; but this does not mean that the construction of the statute should be so rigid and binding as to defeat its clearly expressed purpose. It may be construed and enforced strictly, but at the same time reasonably." In re Jenkins' Will, 157 N.C. 435.

The purpose of the statute is to enable persons who cannot procure the assistance of others in the preparation of a will, or who are inclined to make known prior to death what disposition has been made of their property, to execute a valid will by a paper in their own handwriting, and without the formal attestation of witnesses, and the formalities as to execution are intended to effectuate this purpose and not to defeat it.

The paper must be found after death among the valuable papers of the deceased or deposited with some person for safe keeping. This is to furnish evidence that the deceased attached importance to the paper as a testamentary disposition and to lessen the opportunity for fraud or imposition. The paper must be in the handwriting of the deceased. This is to identify the testator, and to form the causal connection between the writer and the writing, and to prevent the possibility of change and alterations without the consent of the testator. The name of the testator must be subscribed to the paper or inserted in some part thereof, and this is also for identification of the testator, and to furnish evidence of the paper being a completed instrument.

All of these provisions of the statute have admittedly been followed in the present case, unless there has been a failure to subscribe or insert the name of the testator in the paper offered for probate.

Has there been such failure, and what is the meaning of the language to subscribe or insert the name of the testator?

The General Assembly is presumed to know of existing law and to adopt and enact statutes in conformity with it, and it is settled in this State that a valid will may be executed on separate papers (In re Swain'sWill, 162 N.C. 213), and that the name of the testator need not be subscribed; but that it is a sufficient signing if the name appears in any part of the will. Boger v. Lumber Co., 165 N.C. 559.

The Court said in the first of these cases, quoting from Chief Justice Gibson: "It is a rudimental principle that a will may be made (472) on distinct papers, as was held in Earl of Essex's case, cited in Lee v. Libb, 1 Show., 69. It is sufficient that they are connected by their internal sense, by coherence or adaptation of parts," and in the second, quoting from Richards v. Lumber Co., 158 N.C. 56: "It is well settled in this State that when a signature is essential to the validity of an instrument it is not necessary that the signature appear at the end, unless the statute uses the word ``subscribe.' Devereux v. McMahan,108 N.C. 134. This has always been ruled in this State in regard to wills, as to which the signature may appear anywhere."

Under these decisions, if there had been no indorsement on the envelope, and one paper had been found on the inside in the handwriting of the deceased, beginning, "My mind being as good as usual, I Julia W. Johnston, herewith make my will"; or if two papers had been found in the envelope, one in the form of the one found, which undertakes to dispose of property, and the other in the handwriting of the testator, saying, "I, Julia W. Johnston, do make the paper inclosed herewith as my will"; or if the paper found which disposes of property alone had been in the envelope, but the testator had written on the inside of the envelope, "I, Julia W. Johnston, make the inclosed paper my will": in either event the papers could be admitted to probate.

If so, why should probate be denied when words of similar import are used on the outside of the envelope?

The identity of the testator is established by the handwriting on the envelope and on the paper on the inside, and the physical connection by the indorsement and the paper inclosed and the sealing of the envelope.

In 1 Schouler on Wills, sec. 316, the author says, speaking of a will not in the handwriting of the testator and requiring attestation: "A valid signature may be made on a separate piece of paper which is stuck or fastened to the body of the will and contains nothing but the signature and attestation, provided it be shown that the execution was bona fide and regular in other respects and the paper duly fastened at or before the time of attestation."

We have found only one decided case directly in point, Fosselman v.Elder, 98 Pa., 159, which is approved in In re Harrison, 196 Pa., 576. In the Fosselman case the testatrix died leaving a will in due form, dated 1878, which was duly admitted to probate. Subsequently there was found among her valuable papers an envelope bearing the inscription, in decedent's handwriting: "Dear Bella, this is for you to open," and inside was found a $2,000 note, and the following writing in testatrix's own hand: LEWISTON, 21 October, 1879.

My wish is for you to draw this $2,000 for your own use should I die sudden. ELIZABETH FOSSELMAN.

The Court allowed the probate of the envelope as part of the (473) will, saying, in the opinion: "The only remaining question is whether the testatrix has sufficiently designated the plaintiff as the object of her bounty in the paper that is claimed to operate as a codicil to her will. The court below held that she had not, and accordingly entered judgment in favor of the defendant non obstante veredicto. In this we think there was error. It is true, the testamentary paper of 21 October, 1879, does not designate the plaintiff by name, and if we had no written evidence to show who was meant by the pronoun ``you,' the bequest of the note would be void for uncertainty; but it is a settled fact that the envelope is addressed to the plaintiff, and why should not that indorsement in the handwriting of the testatrix be taken as part of the testamentary disposition? It is well settled that a will may be written on several separate pieces of paper. It is not even essential to its validity that the different parts should be physically united; it is sufficient if they are connected by their internal sense or by a coherence and adaptation of parts. Wikoff's Appeal, 3 Harris, 281. . . .

"Without pursuing the subject further, we are of opinion that the inscription on the envelope should be read as the preface to and in connection with the paper inclosed therein, and that they together constitute a valid testamentary disposition of the accompanying note, operating as a codicil to the will of the testatrix."

The case of Warwick v. Warwick (Va.), 10 S.E. 843, relied on by the caveators, has facts something like those before us, but the opinion is based on a statute unlike ours, as is shown by the decision that the paper offered for probate was not signed, although it began, "I, Abram Warwick, declare this to be my last will and testament," which, as we have seen, is a signing under our statute.

The case of Vogle v. Lekritter, 139 N.Y. 223, also relied on, did not involve a holograph will, and the Court rejected an envelope as a part of a will because it was not intended as a testamentary disposition, but as a record of the official act of the notary who prepared the papers.

We have given the question involved careful consideration, and have reached the conclusion that the judgment ought not to be disturbed.

No error. Cited: Hunt v. Eure, 188 N.C. 719 (2c); In re Perry, 193 N.C. 398 (d);In re Will of Thompson, 196 N.C. 274 (5c); In re Will of Lowrance,199 N.C. 785 (3c, 4c); In re Will of Rowland, 202 N.C. 375 (3c, 4c); In reWill of Wallace, 227 N.C. 461 (3c, 4c); Young v. Whitehall Co., 229 N.C. 367 (2c).

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