In Re Code's Wile.

• Decision Date: 01 March 1916
• Docket Number: (No. 119.)
• Parties: In re CODE'S WILE.
• Court: North Carolina Supreme Court

87 S.E. 962

171 N.C. 74

In re CODE'S WILE.

(No. 119.)

Supreme Court of North Carolina.

March 1, 1916.

Appeal from Superior Court, Lee County; Devin, Judge.

Will contest by James M. Cole and others against the Methodist Orphanage. Judgment for contestee, and contestants or caveators appeal. Affirmed.

A. A. F. Seawell, of Sanford, for appellants.

Williams & Williams, of Sanford, and Winston & Biggs, of Raleigh, for appellees.

CLARK, C. J. [1] The paper writing purporting to be the will of Duncan Cole and Georgia S. Cole, his wife, is as follows:

"We give and bequeath to the Methodist Orphanage, situated at Raleigh, North Carolina, all our real and personal property after paying all our just debts and giving a decent burial and headstones to our graves.

"This Jan'y 30. 1912. Duncan Cole.

"Sanford, Lee Co., N. C. Georgia Cole."

This will was probated in common form as the will of Duncan Cole.

The case was heard by the court below upon a "case agreed, " which sets out that said Duncan Cole died October 18, 1912, without issue, his wife, Georgia S. Cole, surviving him; that the paper writing above set out was admitted to probate in common form in Lee county, February 7, 1913, as the holographic will of said Duncan Cole; that said paper writing and every part thereof, save and except the signature of said Georgia S. Cole, which is in her handwriting, is in the genuine handwriting of said Duncan Cole; and that after the death of said Duncan Cole the said paper writing was found among hisvalued papers and effects. Upon said agreed state of facts, the court properly entered judgment holding that the said paper writing was the will of Duncan Cole and should be admitted to probate as his holographic will.

The will in every respect was entitled to probate as the "holographic will" of Duncan Cole. The signature of his wife thereto was mere surplusage, and could in no wise invalidate the instrument as the will of her husband.

This was in no wise a "mutual will, " and the authorities applicable to such wills do not apply.

This was a "joint will, " which has been defined as:

"A testamentary instrument, executed by two or more persons in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common or of their separate property treated as a common fund to a third person, or persons." 30 A. & E. Ency. 556; 40 Cyc. 2110; Gardner on Wills, 87..

In Re Davis' Will, 120 N. C. 9, 26 S. E. 636. 38 L. R. A. 289, 58 Am. St. Rep. 771, it is said:

"There is nothing from which it can be implied even that there was any agreement that, if one should devise to these devisees, the other would do so, or that if one should afterwards revoke the other would do so. Either had the right to do so and without notice to the other."

The fact that his wife signed this will cannot affect its validity as the will of Duncan Cole. It purports to be the intention of each maker. As the will of Duncan Cole, it fulfills all the statutory requirements. The signature of the wife does not purport to be a part of the will of Duncan Cole, and her signature only purports to be an expression of her testamentary intention, and could be considered only if it were offered to be proved as her will.

The validity of joint wills was settled in this state in Re Davis' Will, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 289, 58 Am. St. Rep. 771, in which it was said:

"An instrument of writing, jointly executed by husband and wife, purporting to be their joint will, devising to a third person lands belonging partly to each, may, upon the death of the husband, and during the life of the wife, be probated as his will, as to his property devised thereby, and upon the death of the wife, unless revoked, may be probated as to her property."

It is true that this could not be done in this case as to the wife, as it does not comply, and could not comply, with the requirements of the statutory provisions as to a holographic...