Kerr v. Girdwood

• Decision Date: 23 May 1905
• Citation: 50 S.E. 852,138 N.C. 473
• Parties: KERR et al. v. GIRDWOOD et al.
• Court: North Carolina Supreme Court

50 S.E. 852

138 N.C. 473

KERR et al. v. GIRDWOOD et al.

Supreme Court of North Carolina

May 23, 1905

Appeal from Superior Court, Buncombe County; Moore, Judge.

Action by J. P. Kerr and another, as executors of the will of Laura A. Girdwood, against George Girdwood and others, for construction of the will. From the decree, Mrs. Salena M Roberts and others appeal. Affirmed.

A clause in a holographic will stating that testatrix wished to record the wishes of her deceased husband, and that he desired certain described property to be sold after the death of testatrix and the proceeds divided between his brother and sisters, was a testamentary disposition of the property described.

Merrimon & Merrimon, for appellants.

F. A Sondley and Merrick & Barnard, for appellees.

BROWN J.

Mrs Laura A. Girdwood died during 1904, leaving a last will and testament executed by her as a holograph will, and dated December 26, 1903. The correctness of the judgment appealed from depends upon the efficacy of a certain clause in said will as a testamentary disposition of the property named in it, which clause is as follows: "I wish to record the wishes of my darling husband as expressed to me in his last illness. He felt that he had left me well provided for, and was so thankful to think so, and wanted me to have exclusive use of all property, and everything so long as I live. At my death he wished the two laundry properties to be sold, or disposed of to the best advantage, and the proceeds of the sale to be equally divided between his sister (if living) and his brothers, who are living. He wished me to do just as I pleased with my home place, and personal property, and I hereby express my wishes." The testatrix then proceeded to dispose of her said home place, and to give sundry legacies, but left undisposed of a lot in the city of Asheville on Bailey street, which descended to her sister Bethel Clayton, as her heir, and a lot on Penland street, and also left undisposed of personal property and money. The testatrix, besides other dispositions, made provision for her mother, Mrs. Salena Roberts, and her sister, Mrs. Bethel Clayton.

The only question presented on this appeal relates to the legal effect of the language above quoted, employed by the testatrix in what is undeniably a testamentary document. Are these words testamentary in character, or merely a recital of an occurrence which had taken place between her and her husband? After carefully considering the entire will in the light of the authorities, we have concluded that it was the intention of the testatrix, in employing these words, that they should have a testamentary effect, and that the language employed by her is of such legal efficacy that the law can give force to it and execute her intention. It cannot be doubted that the testatrix thought she was making her will. The paper is testamentary in form, and has been duly...