In Re Will of Thompson

ClabksON, J. The sole question presented: Is the paper-writing offered for probate a codicil to the last will and testament of E. C. Thompson, deceased? We think so. C. S., 4144 sets forth the statutory manner and method of making valid wills: (1) attested, (2) holographic, (3) nuncupative. From the judgment, it will be noted that the requirements of the statute have been complied with and the instrument has been probated as a holographic will. The language of the instrument in question is: "I asigen thee with note over to my wife Mrs. G. E. Thompson at my deth this the 11 day of November, 1921.” It will be seen that the instrument was in the handwriting of E. C. Thompson, inartificially drawn, but the language is explicit. When it appears on the face of the instrument that the “animo testandi” is ambiguous or obscure, the question is ordinarily submitted to the jury for determination. In re Harrison, 183 N. C., 459; In re Southerland, 188 N. C., 325; In re Westfeldt, 188 N. C., 702. The principle, to constitute a valid testamentary disposition, is laid down in 28 R. C. L., p. 60-1 (Wills), as follows: “One distinguishing feature of a will is that it is not to take effect except upon the death of the testator, and has no binding effect during the life of the testator. Until the death of the maker it is ambulatory and revocable. It is of the essence of a will that it should he revocable. An irrevocable will would be an anomaly. A will does not confer any present right at the time of its execution, and nothing vests by reason of such an instrument during the life of the devisor. A will may be compared to an unde- *274 livercd deed or power of attorney, which contains an expression of a purpose which has not yet gone into effect, but on the death of the maker it ceases to be ambulatory, acquires a fixed status, and operates as a transfer of title.” The language of the instrument in the present case, we think, sufficient and comes up to the requirements, and the instrument on its face constitutes a testamentary disposition of the note. A letter written by the deceased a few days prior to his death, giving a list of his property and effects and of his indebtedness, and made in favor of his wife, requesting the addressee to so invest his property that she will “get it as she needs it,” so that she will have a plenty as long as she lives, etc., is valid as-a holograph will appointing the addressee as executor, etc., when meeting the requirements of the law, it being in testator’s handwriting, his signature appearing therein, and found in the writer’s safe among his valuable papers, etc., there being no particular form of a will necessary, and the writing in question evincing an animo testandi. In re Will of Ledford, 176 N. C., 610, citing and distinguishing Spencer v. Spencer, 163 N. C., 88, as follows: “The case of Spencer v. Spencer, 163 N. C., 88, is no authority for the position that a paper in form of a letter cannot be a will; it simply holds that the paper then offered for probate had none of the earmarks of a will.” In Anno, to Re Kelleher, 54 A. L. R., at p. 921, the following comment is made: “In Alston v. Davis (1896), 118 N. C., 202, 24 S. E., 15, although the principal object of the letter appeared to be to give directions for the renting of the testator’s land, the statement therein, 'If I should die, or get killed in Texas, the place must belong to you; and I would not want you to sell it,’ was held testamentary in character, Furches, J., dissenting. However, in Spencer v. Spencer (1913), 163 N. C., 83, 79 S. E., 291, the Court said: The case of Alston v. Davis, supra, is relied upon by plaintiffs; we admit that it sustains plaintiff’s position, but we are unwilling to follow it as a precedent. It is weakened as such by a brief but expressive and forceful dissent, and by the further fact that another member of the court took no part in the decision.” The present case is not controlled by either one of these decisions. A notation on the back of an envelope, “Julia W. Johnston Will,” referring to an instrument ih the envelope, was held to be a valid holographic will. Alexander v. Johnston, 171 N. C., 468. See case cited in that opinion. In Runt v. Hunt, 4 N. H., 434, 17 Am. Dec., 438, the decedent indorsed on the hack of a note these words: “If I am not living at the time this note is paid, I order the contents to be paid to A. H.” He died before the note was paid. This was held to be a testamentary dis *275 position. In Fickle v. Snepp, 97 Ind., 289, 49 Am. Rep., 449, the instrument was in form a promissory note. In all these cases the papers were probated as a will. Indeed, the general rule is that an instrument is a will, if properly executed, whatever its form may be, if the intention of the maker to dispose of his estate after his death is sufficiently manifested. Babb v. Harrison, 9 Rich. Eq., 111, 70 Am. Dec., 203. Morrison v. Bartlett, 41 L. R. A., p. 43 (N. S.). In re Perry, 193 N. C., p. 397. There was presented for probate a note for $1,500, executed under seal by J. E. Williams and W. H. Allen to K. W. Perry, 18 March, 1915, due and payable one year after date, the note had pinned to it a small slip of paper, with the following notation, in the handwriting of the deceased, written in pencil: “I want Siddie Williams have this pack. K-. W. Perry.” This was held not a will, as not coming within the requirements. This Court in that case said: “It will be observed that the language used is simply ‘I want Siddie Williams have this pack,’ and there is nothing to indicate when he wanted her to have it. He does not say he wants her to have it at his death or in case of his death. A will is a disposition of property to take effect on or after the death of the owner. In re Edwards’ Will, supra (172 N. C., 369); Payne v. Sale, 22 N. C., 457.” Mere intention is not sufficient. In re Johnson, 181 N. C., 303. Codicils need not be physically attached to the original will or to each other. In re Westfeldt, 188 N. C., p. 702. For the reasons stated, we see no reason why the instrument is not a valid codicil. The judgment below is Affirmed.