In Re Wallace's Will., 529.

• Decision Date: 21 May 1947
• Docket Number: No. 529.,529.
• Citation: 227 N.C. 459,42 S.E.2d 520
• Parties: In re WALLACE'S WILL.
• Court: North Carolina Supreme Court

227 N.C. 459

42 S.E.2d 520

In re WALLACE'S WILL.

No. 529.

Supreme Court of North Carolina.

May 21, 1947.

Appeal from Superior Court, Mecklenburg County; Felix E. Alley, Judge.

Proceeding in the matter of the probate of the will of Mrs. W. W. Wallace. From an adverse judgment, caveaters appeal.

No error.

Issue of devisavit vel non raised by a caveat to the holograph will of Mrs. W. W. Wallace.

On 4 December 1945, the Clerk of the Superior Court of Mecklenburg County ad-mitted to probate in common form the following script:

"1942

"(July 1940) 2

"(Thursday 4) 3

"My Birthday 66 years old all so glad when I die I no that they want all my money I am hungry now My money is all in land not but one child has helped me that is Allene Wallace she has spent money for me and helped papa Eight hundred dollars to berrie her sister its offul to have such mean children in this world I want Everything I leave given to Allene she sure deserves it in full

"Mrs. W W Wallace"

Thereafter, ten of Mrs. Wallace's twelve living children filed a caveat alleging: (1) Undue influence, and (2) mental incapacity.

The matter was thereupon transferred to the civil issue docket, and upon the hearing the jury sustained the paper-writing as the last will and testament of the deceased.

From judgment on the verdict, the caveators appeal, assigning errors.

Henry L. Strickland and J. C. Sedberry, both of Charlotte, for propounders, appellees.

Morgan B. Gilreath and Ralph V. Kidd, both of Charlotte, for caveators, appellants.

STACY, Chief Justice.

The will in question was written in a small note book or diary. At the top of the page on which it appears are the printed words and figures, "July 1940 Thursday 4." Over the figure "0" in the "1940" the figure "2" is written and across the "4" after the word "Thursday" the figure "3" is written. The evidence tends to show that these written changes of the printed figures were in the handwriting of Mrs. Wallace, as well as the balance of the paper-writing.

On the hearing, the jurors were hesitant to answer that "the paper writing and every part thereof" was the holograph will of Mrs. W. W. Wallace, because of the printed words and figures appearing thereon. The court thereupon instructed the jury that a holograph will was not required to be dated, or to indicate where it was prepared, and that if the written words appearing in the handwriting of the deceased were sufficient within themselves to express her dispositive intent, the mere presence thereon of printed words, not essential to the meaning of the words in writing, would not perforce destroy the testamentary character of the script. To this instruction, the caveators objected and have assigned the same as error.

The principal question presented by the appeal is the correctness of the foregoing instruction. It was taken from the case of In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876, and is supported by what was said therein. The decisions in Alexander v. Johnston, 171 N.C. 468, 88 S.E. 785, and In re Jenkins'...