Peace v. . Edwards , 170 N.C. 64 ( 1915 )

AlleN, J.

Tbe right to dispose of property by will is not a natural right. It is one conferred and regulated by statute. Pullen v. Comrs., 66 N. C., 363. In this case Rodman, J., says: “Property itself, as well as the succession to it, is tbe creature of positive law. The legislative power declares what objects in nature may be held as property; it provides by what forms and on what conditions it may be transmitted from one person to another; it confines tbe right of inheriting to certain persons whom it defines heirs; and on tbe failure of such it takes tbe property to tbe State as an escheat. Tbe right to give or take property is not one of those natural and inalienable rights which are supposed to precede all government, and which no government can rightfully impair.”

Tbe only case bolding to tbe contrary we have found is Nunnemacher v. State, 129 Wis., 190, which is also reported in 9 A. and E. Anno. Oases, Ill, where there is a very comprehensive note collecting authorities from twenty-three states and from tbe Supreme Court of the United States, supporting tbe Pullen case, tbe editor concluding that “Tbe doctrine of tbe reported case, that there is a natural right, protected by the-Constitution, to take property by inheritance, devise, or bequest, is entirely new to tbe law. Tbe doctrine which has long been regarded as not.open to question is that such right is entirely dependent upon, and subject to modification or abridgment by, statutory law.”

We must then examine tbe statutes of our State to see wbat formalities are necessary to tbe execution of a valid will, and wben we do so we find tbat there is no requirement tbat a will shall be dated or subscribed (Rev., 3113), and in tbe absence of a statute saying tbat a will must be dated tbe general doctrine is tbat a will without date is valid. “Where tbe statute does not require a date an undated will is valid.” 30 A. and E. Ency., 591. “Tho date not being a material part of a will, a will may therefore be held to be valid, although it has no date or a wrong one, unless a statute provides otherwise.” 40 Cyc., 1098. See also to the same effect 14 Ency. Ev., 434; 1 Underhill on Wills, p. 247.

The statute does, however, require the will to be signed, but it is well settled that if the name of the testator appears in his handwriting in the body of the will this is a signing within the meaning of the statute. Hall v. Misenheimer, 137 N. C., 185; Richards v. Lumber Co., 158 N. C., 56; Boger v, Lumber Co., 165 N. C., 559; Burriss v. Starr, 165 N. C., 660.

In the last case the Court quotes with approval from Boger v. L. Co. and Richards v. L. Co., as follows: “The authorities make a distinction between statutes requiring instruments to be signed and those requiring- 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 Richards v. Lumber Co., 158 N. C., 56, dealing with this question, the Court said: ‘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. McMahon, 108 N. C., 134. This has always been ruled in this State in regard to wills, as to which the signature may appear anywhere. If this is true of a “signature,” it must also be true of the word “countersign.” It has been often held that the place of signing is a matter of taste. Adams v. Field, 21 Vermont, 264; 36 Cyc., 4417 ”

It follows, therefore, that as a will without date, and which is not subscribed, is valid, and as it is a signing within the meaning of the statute if the name of the testator is in the body of the will in his handwriting, that the three paper-writings which are without date and not subscribed have the same legal effect as the one which bears date and is subscribed, as each has the declaration in the handwriting of the testator that “I, Josephus A. Peace, of the county of Granville and State of North Carolina, do make, publish, and declare this to be my last will and testament.”

We attach no significance to the words “last will” under the signature of the testator, because each paper says it is his last will.

We have, then, four paper-writings, found folded together among the papers of the deceased, each executed as required by statute, and each a valid exercise of testamentary capacity, and they áre not in harmony so they may be upheld as one will, but are inconsistent and mutually destructive of each other, and there is no evidence, direct or circumstantial, and nothing on the face of the papers to prove which is the latest expression of the intent of the deceased. Under these circumstances neither can stand, and it must be held that the deceased died intestate.

“Where two wills containing inconsistent dispositions bear the same date, evidence is admissible to show which was executed last. If there is no extrinsic evidence to be had neither instrument will be admitted to probate.” 30 A. and E. Ency., 627; 40 Cyc., 1176.

“WTiere two or more wills, or a will and a codicil, properly executed, but undated, or of the same date, are discovered at the death of the testator, difficulty will naturally be discovered in ascertaining which speaks his final intention. . . . If it is impossible for the Court, after considering all available extrinsic evidence, and an attentive perusal and comparison of the writings, to determine which is the later or latest, all of necessity will be void so far at least as they are irreconcilably inconsistent.” 1 Underhill on Wills, 351.

We, therefore, conclude that there is no error in the instruction to the jury.

Affirmed.