Wise v. Short

• Decision Date: 04 May 1921
• Docket Number: 448.
• Parties: WISE ET AL. v. SHORT.
• Court: North Carolina Supreme Court

107 S.E. 134

181 N.C. 320

WISE ET AL. v. SHORT.

No. 448.

Supreme Court of North Carolina

May 4, 1921

Appeal from Superior Court, Mecklenburg County; W. F. Harding Judge.

Action by C. W. Wise and another against J. D. Short. Judgment for plaintiffs, and defendant appeals. Affirmed.

A letter written to a brother immediately before the writer entered a hospital for treatment reading: "Brother Richard, * * * I am going to the hospital on account of not feeling well. I hope God nothing happens, but if it does everything is yours. Got some money in the bank, but don't know how much we owe on house. * * * [Signed] Brother Alex"--held a valid holograph will.

This case comes here, upon a case agreed, heard before Judge Harding, with reference to the title to a house and lot in the city of Charlotte, N. C., the plaintiffs having entered into an agreement with the defendant for the purchase of the same by him. The defendant, under advice of counsel, declined to take title, for that the same was defective as to a one-half interest in the land purported to have been devised under a will made in the Syrian language by Alex Salem to Richard Salem, predecessor in title of the plaintiffs, and further that the other or second source of title to same one-half interest was defective, it being as follows: That the said Richard Salem having failed to pay the amount of the debt secured by the deed of trust due by him to his brother the devisor in said will, the property was sold by the trustee, and purchased by Richard Salem at public sale, but the defendant, through his attorney, objected to the fact that the deed made by the trustee was dated and recorded before the expiration of 10 days after the public sale, and said deed of trust having been made after May 1, 1915. These are the two principal points in controversy. It is admitted that the sale was otherwise regular, and that there were no advance bids, and that the estate of the intestate has been duly settled, and that the property has passed through several mesne conveyances to the present owner. Judgment for plaintiffs, and defendant appealed.

E. R. Preston, of Charlotte, for appellees.

WALKER J. (after stating the facts as above).

The will, dated October 6, 1918, is as follows:

"Brother Richard, take care of yourself and stay with William at the store. I am going to the hospital on account of not feeling well. I hope God nothing happens, but if it does, everything is yours. Got some money in the bank, but don't know how much we owe on house. Mr. Buchanan will tell you. We do not owe anything else except that. I hope in a few days I will come back. All papers at the same bank we deal with, box 305. [ Signed] Brother Alex."

This paper, though in the form of a letter, is sufficient, in substance, as a holograph will. It was written by the testator and found among his valuable papers and effects. He was about to enter a hospital for treatment when he wrote it, and was apprehensive that he would not survive it, though he expressed the hope that he would return to his home. The paper was evidently written and signed by him animo testandi, and he intended it to be his will. It contains evidence of his present intention to dispose of his property and to give it to his brother, Richard Salem, his own name being Alex Salem. The paper was proved as a holograph will according to the statute and recorded. That it is in form sufficient to operate as a valid will will appear from the following authorities: In re Will of Ledford, 176 N.C. 610, 97 S.E. 482; In re Will of Bennett, 180 N.C. 5, 103 S.E. 917, and cases cited therein; Milam v. Stanley, 33 Ky. Law Rep. 783, 111 S.W. 296, 17 L. R. A. (N. S.) 1126; Gardner on Wills, p. 40; Spencer v. Spencer, 163 N.C. 88, 79 S.E. 291; In re Will of J. Vestal Johnson (No. 397 at this term) 106 S.E. 841. Gardner on Wills, supra, says:

"So a letter written by a testator to a friend, authorizing him to take charge and dispose of the testator's property, and to sell and convey the same as his executor, properly attested, sufficiently evidences the testator's intention to dispose of his property, and may be probated as a will. But a letter, like any other instrument, to take effect as a will, must be executed in compliance with the requirements of the statute, and must express a genuine present and not merely an anticipated testamentary intent."

Jarman on Wills (6th Ed.) p. 21, expresses the same view, as follows:

"The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is

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