Dulin v. . Dulin

Adams, J. In Harper v. Harper, 148 N. C., 453, 458, the Court said this: “We note that this proceeding, brought to term, includes both the *219 issue of devisavit vel non and proceedings for the construction of the will. This is certainly unusual, but all the parties are before us, and ask that the whole matter be determined in this action. It is not a question of jurisdiction (which we would be compelled to notice ex mero motu), for the clerk is part of the Superior Court. No exception is taken, and the whole matter, under the consent and request of parties, is disposed of.” The parties to the present suit agreed to pursue the same course and accordingly did not except to the form of the action. It is not denied that the executor had the right to invoke the equitable jurisdiction of the court for direction as to the discharge of his trust. Freeman v. Cook, 41 N. C., 373; Alsbrook v. Reid, 89 N. C., 151; Bank v. Alexander, 188 N. C., 667; Trust Co. v. Stevenson, 196 N. C., 29. The appellants excepted to the issue submitted and to the judge’s refusal to submit to the jury the issue which they tendered. The exception is overruled upon the familiar principle reiterated upon similar facts in Cornelius v. Brawley, 109 N. C., 542: “The issue submitted arose on the pleadings, and was such as afforded either party opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions, and was therefore sufficient (Humphrey v. Church, ante, 132; McAdoo v. R. R., 105 N. C., 140; Denmark v. R. R., 107 N. C., 187, Leach v. Linde, 108 N. C., 547), and indeed, follows the precedents in such cases. Eaton’s Forms, 282. The issues suggested by appellants presented rather evidential than constitutive facts, and were properly rejected. Grant v. Bell, 87 N. C., 34; Patton v. R. R., 96 N. C., 455.” The jury were clearly instructed that the burden was upon the plaintiffs, who are the propounders, to satisfy the jury by the greater weight of the evidence that the paper in question is the last will and testament of C. A. Dulin; and this part of the charge was followed by the more specific instruction that it was incumbent upon the plaintiffs to prove that the purported will was found among the valuable papers of the testator, that it was intended by him to be a will disposing of his property, and that every part of it was in his own handwriting — the words “every part” of the paper necessarily including the signature. Mayo v. Jones, 78 N. C., 402; Syme v. Broughton, 85 N. C., 367; In re Hedgepeth, 150 N. C., 245; In re Ross, 182 N. C., 477. The “affirmative and direct proof” declared to be necessary in St. John’s Lodge v. Callender, 26 N. C., 335, may be found in the testimony of the witnesses in the case before us, though in the case just cited Chief Justice Ruffin no doubt had reference primarily to the insufficiency of hearsay evidence. The appellants have no just cause of complaint against the charge upon the burden of proof. *220 There was evidence tending to show that the contested paper was found at C. A. Dulin’s borne, in a trunk which was kept in his bedroom with' his clothing; that the trunk was locked, the key in a bookcase; that in the trunk were deeds, plats, paid checks, personal letters, and photographs. It was testified that other papers of a different character and apparently of less value were found elsewhere in the house. The appellants contended that the asserted will was not found among the maker’s valuable papers, and excepted to the instruction given on this question. The following definition of “valuable papers” was approved in the case of In re Jenkins, 157 N. C., 429: “ 'Valuable papers’ within the meaning of the statute are such papers as are kept and considered worthy of being taken care of by the particular person, having regard to his condition, business, and habits of preserving papers. They do not necessarily mean the most valuable papers of the decedent even, and are not confined to papers having a money value, or to deeds for land, obligations for the payment of money, or certificates of stock. The requirement is only intended as an indication on the part of the writer that it is his intention to preserve and perpetuate the paper as a disposition of his property, and that he regards it as valuable; consequently, the sufficiency of the place of deposit to meet the requirement of the statute will depend largely upon the condition and arrangements of the testator. Pritchard on Wills, sec. 237; Winstead v. Bowman, 68 N. C., 170; Marr v. Marr, 2 Head., 303; S. c., 5 Sneed, 385; Allen v. Jeter, 6 Lea, 672; Reagan v. Stanly, 11 Lea, 316.” The substance of this definition was included in the charge. The imaginary cases proposed by the trial judge, to which exception was noted, were nothing more than hypothetical illustrations of this definition, containing so far as we can see no potential prejudice to the position taken by the appellants or to the defenses on which they rely. The remaining exceptions relate to the interpretation of the will. It was first adjudged that P. P. Dulin is the duly appointed executor. The word “executor” does not appear in the will, but the testator imposed upon P. P. Dulin certain duties which are usually performed only by a person acting in a representative or fiduciary character. An appointment of this kind may be indicated by any words which confer upon a designated person the rights, powers, and duties of an executor. The intent of the testator is shown, the appointee is identified, and to him is committed the disposition of the estate. The testator’s language, we think, is sufficiently definite to warrant the conclusion that he intended to appoint his brother the executor of his estate. 23 C. J., 1020, 1021; Harper v. Harper, supra. *221 It does not definitely appear whether the testator had assets to be collected and debts to be paid; but we should hesitate to say that the direction to “divide the rest equal” does not import the power to collect as well as the power to disburse. Without deciding this question we may say that the conferred power to divide the property reasonably imports the power to sell it for distribution. Foster v. Craige, 22 N. C., 209; Vaughan v. Farmer, 90 N. C., 607; Council v. Averett, 95 N. C., 131. The exception to the order directing the executor to sell and dispose of the testator’s real and personal property must therefore be overruled. The brother' and the two sisters of the testator were properly excluded. In construing the will we must have regard to the testator’s intention, but as was said in McIver v. McKinney, 184 N. C., 393, it is not the intention that may have existed in his mind, if at variance with the obvious meaning of the words used, but that which is expressed by the language he has employed. The testator’s expressed intention was to provide for his nephews and nieces — not to give his estate in equal parts to his next of kin. We have considered all the exceptions but are unable to concur in the appellants’ interpretation of the will. We find No error.