In Re Davis' Will.

• Decision Date: 16 February 1897
• Citation: 120 N.C. 9,26 S.E. 636
• Court: North Carolina Supreme Court
• Parties: In re DAVIS' WILL. Appeal of HODGES.

26 S.E. 636

120 N.C. 9

In re DAVIS' WILL. Appeal of HODGES.

Supreme Court of North Carolina.

Feb. 16, 1897.

Joint Will—Probate.

1. A writing purporting to be the joint will of two persons cannot be probated as such in the life of one of them.

2. A writing jointly executed by a husband and wife, purporting to be their will, devising to a third person land parts of which belong to each, can be proved as the separate will of the husband, on his death, while the wife is living.

Appeal from superior court, Beaufort county; Timberlake, Judge.

Proceeding by Thad. R. Hodges to prove the will of Sutton Davis, deceased. From a judgment affirming the judgment of the clerk refusing to admit the alleged will to probate, Hodges appeals. Reversed.

Chas. F. Warren, for appellant.

FAIRCLOTH, C. J. On July 27, 1893, Sutton Davis and wife, Henrietta Davis, jointly executed an instrument of writing, regular in all respects, purporting to be their last will and testament, giving several tracts of landto Fanny Roberson and others and their heirs and assigns. On July 15, 1896, Sutton Davis died. Henrietta is still living. The executor named in the will offered to prove the paper writing as the joint will of the signers, also to prove it as the separate will of Sutton Davis, and to qualify as executor. The clerk refused the motion, and on appeal his honor affirmed the judgment of the clerk. The executor appealed, assigning error: (1) The refusal of the court to declare said writing to be the joint will of Davis and wife; (2) the refusal of the court to declare said writing to be the will of the husband alone, and to order the clerk to qualify him as executor thereof.

This case is somewhat novel, and presents a question which, so far as we have discovered, has not been brought to the attention of this court except in one case: First. Can the paper writing be probated as the joint will of the signing parties? Second. If it cannot, may it be proved as the separate will of the deceased husband? The record fails to disclose whether the property belonged to one or partly to each of the devisors, but we are informed by counsel that some parts of the land belonged to each. We shall assume such to be the fact, as that is the strongest view against the executor. The paper professes in plain language a joint purpose to dispose of the property in a single instrument, and to have one executor. There is no intimation of survivorship on the death of one, or when the devise shall become operative, whether upon the death of one as to his or her part, or upon the death of both as to the whole property. The question, then, must be answered upon these plain words: "We give and bequeath to Fanny Roberson, colored, and her daughter Adelia Roberson, and their heirs and assigns, a certain tract or parcel of land, bounded and described as follows, " etc.

We omit from our consideration the first error assigned, for in no view can the instrument be proved as the will of both, the wife now living. If established in any way, it must be as the separate will of the deceased husband. The text-books to which we were referred on this subject treat of joint wills, conjoint wills, compacts, and mutual wills, etc., all of which would fall under the first error assigned. 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. It is not like the case of a mutual will, in which, after the husband's...