In Re Jenkins' Will.

• Decision Date: 13 December 1911
• Citation: 72 S.E. 1072,157 N.C. 429
• Court: North Carolina Supreme Court
• Parties: In re JENKINS' WILL.

72 S.E. 1072

157 N.C. 429

In re JENKINS' WILL.

Supreme Court of North Carolina.

Dec. 13, 1911.

1. Wills (§ 131^*) — Holographic Wills — statutes—co nstruct1on—"and."

Though Rev. Code, c. 119, § 1, now Revisal 1906, § 3127, providing that a holographic will must be found among the valuable papers and effects of the deceased, changed the prior law by substituting "and" for "or, " the word "and" should still be construed as "or, " since otherwise a person owning effects of ever so much value, without any valuable papers, could not execute a holographic will; it being improbable that the Legislature intended such a radical change in the law by the alteration of a single word.

[Ed. Note.—For other cases, see Wills, Dec. Dig. § 131.*

For other definitions, see Words and Phrases, vol. 1, pp. 3s5-394; vol. 8, p. 7575.]

2. Wills (§ 135*) — Holographic Wills-Statutes—"Effects. "

Under Revisal 1905, § 3127, providing that to be probated a holographic will must be found among the valuable papers and effects of decedent, the word "effects" is broad enough to include policies of insurance, which are both valuable papers and effects.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 346; Dec. Dig. § 135.*

For other definitions, see Words and Phrases, vol. 3, pp. 2320-2323.]

3. Wills (§ 131*)—Execution—Formalties.

Statutes, relating to the execution of wills, are for the protection of the heirs at law and the next of kin of a decedent, and when relating to holographic wills should be strictly and reasonably construed so as to protect such persons, but at the same time so as to give effect to their purpose.

[Ed. Note.—For other cases, see Wills, Dec. Dig. § 131.*]

4. Wills (§ 131*) — Holographic Wills-Statutes.

Statutes, relating to the execution and formalties necessary to give effect to holographic wills, are mandatory, and not directory.

[Ed. Note.— For other cases, see Wills, Dec. Dig. § 131.*]

5. Wills (§ 135*) — Holographic Wills— Statutes—Most Valuable Papers.

Revisal 1905, § 3127, providing that a holographic will shall be admitted to probate, if found among valuable papers and effects, does not require that the will should be found among the most valuable papers of a decedent.

[Ed. Note.— For other cases, see Wills, Cent. Dig. § 346; Dec. Dig. § 135.*]

6. Wills (§ 288*) — Holographic Wills-Valuable Papers—Presumption.

The finding of a holographic will among the valuable papers and effects of a decedent raises the presumption that it was placed there by him. with the intent that it should operate as a will.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 662; Dec. Dig. § 288.*]

7. Wills (§ 302*) — Holographic Wills — Statutes.

Under Revisal 1905, § 3127, providing that a holographic will should be given effect, if found among the valuable papers and effects of decedent, proof that the instrument was placed there by the decedent is unnecessary, in the first instance, when there is no countervailing proof.

[Ed. Note.— For other cases, see Wills, Dec. Dig. § 302.*]

8. Wills (§ 135*) — Holographic Wills—

"Valuable Papers."

Under Revisal 1905, § 3127. providing that a holographic will shall be given effect, if found among the valuable papers of decedent, the term "valuable papers" means such papers as are kept and are considered by the decedent worthy of being taken care of.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 346; Dec. Dig. § 135.*

For other definitions, see Words and Phrases, vol. 8, p. 7274.]

9. Wills (§ 324*) — Holographic Wills — Jury Question."

Upon a caveat to test the validity of an alleged holographic will, held, that whether the will was found in a proper place of deposit, as required by Revisal 1905, § 3127, was, under the evidence, a question for the jury.

[Ed. Note.—For other cases, see Wills, Dec. Dig. § 324.*]

Appeal from Superior Court, Halifax County; J. S. Adams, Judge.

Application for the probate of the will of W. T. Jenkins, contested by Dolisca Jenkins and others. From a decree sustaining the will, contestants appeal. Affirmed.

This is a caveat to a paper writing, which purports to be the last will and testament of W. T. Jenkins. Upon issues submitted to them, the jury found that the script and every part thereof is in the handwriting of the said Jenkins. It was unattested. The jury also found that the paper writing, which had been proved in common form, is the will of W. T. Jenkins.

The evidence tended to show that Jenkins died in May, 1909, and after his death a search was made for a will by Levi Browning, who married his niece, and had lived in the house with him three years; his wife having lived there practically all her life. The witness Browning testified that they searched the clothes of the deceased, and looked over the papers and his house and his room. On direct examination, he said there were no papers in the house, but on cross-examination corrected that statement, and said that there were some papers in W. T. Jenkins' bedroom, in a bureau. They did not find a will in the house, according to Browning, and proceeded to examine the papers at W. T. Jenkins' store. The witness was asked: "Q. W. T. Jenkins was a business man, was he not? A. Yes, sir; so far as I know. Q. He did have some papers that you found at the store? A. Yes, sir. Q. Valuable papers—notes and mortgages, were they not? A. I don't know that they were so valuable; didn't seem to be kept up. Of course, there were some valuable papers in them—some deeds and things."

According to the evidence of Browning and other witnesses, Capt. Jenkins was a man of good business judgment, and a great many of the people in the neighborhood would come and get him to write papers for them. The paper writing was dated April, 9, 1909, and the witness testified that W. T. Jenkins' mind was sound at that time. Browning further testified that after N. E. Jenkins, a brother of the deceased, had qualified as administrator, which was 12 or 15 days after the death of Capt. Jenkins, he renewed the search for a will, and found the paper writing offered for probate in a table drawer in the hall of Capt. Jenkins' house. The paper was in an envelope with some insurance papers—insurance on his gin and dwelling—only one of which was then in force. After finding this paper, the witness, according to his own admission, did not tell any one connected with the estate or with Capt. Jenkins about finding this paper until it was offered for probate, and he refused to let anybody compare the handwriting. Carrie E. Browning, who will take one-half of the estate of Capt. Jenkins if this will is sustained, and who is the wife of Levi Browning, testified that it was two or three weeks after the death of Capt. Jenkins before the will was found. She describes the finding of it as follows: "Well, as there had not been one found, of course, we were on the lookout for one. We were hunting for some medicine my husband was taking. There was a person in the neighborhood who wanted some poison, and he wanted to send him some sugar of lead, and he, with the object in view of finding a will, if there was one, and to get this medicine, happened to think of this drawer, and went in there and found this paper." Mrs. Browning was asked why the table was not examined earlier. She answered: "Because we did not think of papers being in there, as it was used for this poison medicine generally, as well as other kinds." The witness also said that she had turned the drawer to the wall, to keep the children from going in where this medicine was. She further said: "I knew what was in the drawer, but it was a drawer not used much—in everyday use, I should have said." Asked, "How long, Mrs. Browning, before the death of Capt. Jenkins did you go in the drawer?" she answered, "Well it probably might have been several months since we needed an article in that drawer. Q. During his sickness, you kept his medicines in that drawer? A. No, no; did not keep them in there. We had them fresh from the doctor; kept them right on his table, and administered them from his table."

Levi Browning was recalled, and testified that he found the paper in an envelope, which was offered in evidence, and that insurance policies were also in the envelope. There was evidence that the will was found in an envelope, on which was written, in the handwriting of W. T. Jenkins, the word "Important." Much testimony was introduced by the propounders to prove that the script was in the handwriting of W. T. Jenkins, and by the caveators to show the contrary. Evidence was also offered by the caveators as to the circumstances under which the paper was found in the drawer. N. E. Jenkins, a witness for the caveators and a brother of the deceased, testified that he examined all the papers of W. T. Jenkins, both at his house and store, but could not find a will. About 15 days after his brother's death, he qualified as administrator, and several days later, about the 18th or 19th of May, he received notice of the existence of this paper, but was not notified by Browning.

At the close of the caveators' evidence, Levi Browning was again recalled, and testified that there was another policy in the envelope that had expired. At the close of the evidence, the caveators requested the court to instruct the jury that, upon the evidence, they should answer the issue, "No, " thereby finding that the paper writing exhibited by the propounders is not the last will and testament of W. T. Jenkins; and they also asked for special instructions, based upon the insufficiency of the evidence to establish the will, all of which were refused, and caveators excepted, and from the judgment against them appealed to this court.

Murray Allen, Jos. P. Pippen, and Geo. C. Green, for appellants.

W. E. Daniel and R. C. Dunn, for appellees.

WALKER, J. (after stating the facts as above). There was sufficient evidence in the case to prove that the script was found in the drawer with policies of insurance, some of which had expired, and that it had...