Rountree v. . Rountree

Proceeding under Declaratory Judgment Act, ch. 102, Public Laws 1931, to determine character of paper writing probated as a will.

Following the death of Albert E. Rountree on 3 March, 1934, there was found in his safe, among his valuable papers and effects, in a sealed envelope, written wholly in his own hand, a paper writing in the form of a letter addressed to his kinsman, Honorable George Rountree, Wilmington, N.C. attorney at law and former judge, in words and figures as follows:

"10 January, 1930.

HON. GEO. ROUNTREE, Wilmington, N.C.

"DEAR COUSIN GEO.: — My affairs are in bad shape and I am in bad health. If managed properly there is enough to keep my family from want. Will you please take charge and arrange so Mable can carry on.

"Everything is left to her.

"Please do this for me.

Sincerely,

ALBERT E. ROUNTREE."

Upon the discovery of this letter the same was probated in common form as the last will and testament of the deceased.

The deceased left him surviving his widow, Mabel L. Rountree, petitioner herein, and four children parties hereto.

At the time of decedent's death he was tenant in common with Sallie R. Crisp and Rosabel R. Cowper of a tract of land in Lenoir County, each being seized of a one-third undivided interest therein.

Mabel L. Rountree, the person designated in the above paper writing as "Mable," and who claims as sole beneficiary and devisee thereunder, has suggested a voluntary division and partition of said tract of land, and the other tenants in common have consented to join with her in the execution of partition agreement or divisional deeds "in the event the petitioner shall be judicially declared to be the owner of a one-third undivided interest therein, . . . but defendants have questioned the validity of the paper writing quoted above as the last will and testament of Albert E. Rountree, deceased," and for the purpose of obtaining the desired judicial declaration the respondents deny that the petitioner is the owner of a one-third undivided interest in the land in question.

The court being of opinion that said paper writing "appears to have been written animo testandi, and, on its face, is a valid will," entered judgment approving the voluntary partition, from which the respondents have appealed. On the hearing the matter was properly made to turn on whether the paper writing, which has been probated in common form as the last will and testament of Albert E. Rountree, deceased, is sufficient in character and substance to constitute his will. The trial court ruled in favor of its sufficiency on authority of Wise v. Short, 181 N.C. 320, 107 S.E. 134. With this we agree.

A paper writing which bears upon its face, as the present instrument does, the animus testandi of the maker will be declared his will as a matter of law. In re Will of Rowland, 206 N.C. 456, 174 S.E. 284; In reWill of Ledford, 176 N.C. 610, 97 S.E. 482; Outlaw v. Hurdle, 46 N.C. 150. Indeed, when the testamentary intent appears on the face of a paper writing its character is fixed. In re Southerland, 188 N.C. 325,124 S.E. 632.

In the instant case the writer was in bad health. He wanted his kinsman, a lawyer and former judge, "to take charge" of his affairs "and arrange so Mable can carry on. Everything is left to her." This is dispositive language. Spencer v. Spencer, 163 N.C. 83, 79 S.E. 291. The communication was addressed to one to whom the writer would naturally turn for counsel and advice in the settlement of his estate, but would hardly have asked "to take charge" of his affairs during his lifetime. He knew that after his death proper management would be necessary to preserve his estate, so he requested his kinsman, who was eminently capable of fulfilling the trust, to "arrange so Mable can carry on," as everything is left to her. This means that at the writer's going or demise "everything is left to her." He undoubtedly intended the letter as his will. He did not mail it, but placed it in his safe among his valuable papers. "Please do this for me" was his final request. The writing is testamentary in character. In re Rowland, 202 N.C. 373, 162 S.E. 897.

One definition of a will is that it is the duly expressed mind of a competent person as to what he would have done after his death with those matters and things over which he has the right of control and disposition. Richardson v. Cheek, 212 N.C. 510. The paper writing in question seems to meet this test. In re Will of Thompson, 196 N.C. 271, 145 S.E. 393; Inre Johnson, 181 N.C. 303, 106 S.E. 841. Nothing was said in In reBennett, 180 N.C. 5, 103 S.E. 917, or in In re Perry, 193 N.C. 397,137 S.E. 145, which militates against this position.

The judgment is approved.

Affirmed.