Alexander v. . Johnston

Alleit, J. The right to dispose of property by will is statutory (Pullen v. Comrs., 66 N. C., 361), and can only be exercised by following the requirements of the statute. In re Jenkins’ Will, 157 N. C., 429. These requirements, prescribed by the legislative department for the execution of a will, are essential, and cannot be disregarded. They are the measure of the exercise of the right, and the heir cannot be deprived of his inheritance except in the way pointed out. In determining the construction of a will, the controlling idea is to discover and give effect to the intent of the testator, but when the question of its formal execution is at issue we look to the intent of the Legislature (In re Seamon, 2 A. and E. Anno. Cases, 726), and this intent must be gathered from the language, and from a consideration of the existing law, the evils intended to be remedied, and the remedy applied. Blackstone says, page 14: “There are three points to be considered in the construction of all remedial statutes — the old law, the mischief, *471 and tbe remedy; tbat is, bow tbe common law stood at tbe making o£ tbe act, wbat tbe mischief was for wbicb tbe common law did not provide, and wbat remedy tbe Parliament batb provided to cure tbis mischief. And it is tbe business of tbe judge so to construe tbe act as to suppress tbe mischief and advance tbe remedy.” Our Court has also said, referring to tbe statute as to holographic wills: “Tbe provisions of tbe statute are, of course, mandatory and not directory, and, therefore, there must be a strict compliance with them before there can be a valid execution and probate of a holographic script as a will; but this does not mean tbat tbe construction of tbe statute should be so rigid and binding as to defeat its clearly expressed purpose. It may be construed and enforced strictly, but at tbe same time reasonably.” In re Jenkins’ Will, 157 N. C., 435. Tbe purpose of the statute is to enable persons who cannot procure tbe assistance of others in tbe preparation of a will, or who are inclined to make known prior to death wbat disposition has been made of their property, to execute a valid will by a paper in their own bandwriting, and without tbe formal attestation of witnesses, and tbe formalities as to execution are intended to'effectuate tbis purpose and not to defeat it. Tbe paper must be found after death among tbe valuable papers of tbe deceased or deposited with some person for safe keeping. Tbis is to furnish evidence tbat tbe deceased attached importance to tbe paper as a testamentary disposition and to lessen tbe opportunity for fraud or imposition. Tbe paper must be in the bandwriting of tbe deceased. Tbis is to identify tbe testator, and to form tbe causal connection between tbe writer and tbe writing, and to prevent tbe possibility of change and alterations without tbe consent of tbe testator. Tbe name of tbe testator must be subscribed to tbe paper or inserted in some part thereof, and tbis is also for identification of tbe testator, and to furnish evidence of the paper being a completed, instrument. All of these provisions of tbe statute have admittedly been followed in tbe present case, unless there has been a failure to subscribe or insert tbe name of tbe testator in tbe paper offered for probate. Has there been such failure, and wbat is tbe meaning of tbe language to subscribe or insert tbe name of tbe testator? The General Assembly is presumed to know of existing law and to adopt and enact statutes in conformity with it, and it is settled in tbis State tbat a valid will may be executed on separate papers (In re Swain's Will, 162 N. C., 213), and tbat tbe name of tbe testator need not be subscribed; but tbat it is a sufficient signing if tbe name appears in any part of tbe will. Boger v. Lumber Co., 165 N. C., 559. Tbe Court said in tbe first of these cases, quoting from Chief Justice Gibson: “It is a rudimental principle tbat a will may be made on dis- *472 iinct papers, as was beld in Earl of Essex’s case, cited in Lee v. Libb, 1 Show., 69. It is sufficient that they are connected by their internal sense, by coherence or adaption of parts,” and in the second, quoting from Richards v. Lumber Co., 158 N. C., 56: “It is well settled in this State that when a signature is essential to the validity of an instrument it is not necessary that the signature appear at the end,- unless the statute uses the word ‘subscribe.’ Devereux v. McMahan, 108 N. C., 134. This has always been ruled in this State in regard to wills, as to which the signature may appear anywhere.” Under these decisions, if there had been no indorsement on the envelope, and one paper had been found on the inside in the handwriting of the deceased, beginning, “My mind being as good as usual, I, Julia W. Johnston, herewith make my will” '; or if two papers had been found in the envelope, one in the form of the one found, which undertakes to dispose of property, and the other in the handwriting of the testator, saying, “I, Julia W. Johnston, do make the paper inclosed herewith as my will”; or if the paper found which disposes of property alone had been in the envelope, but the testator had written on the inside of the envelope, “I, Julia W. Johnston, make the inclosed paper my will”: in either event the papers could be admitted to probate. If so, why should probate be denied when words of similar import are used on the outside of the envelope? The identity of the testator is established by the handwriting on the envelope and on the paper on the inside, and the physical connection by the indorsement and the paper inclosed and the sealing of the envelope. In 1 Schouler on Wills, see. 316, the author says, speaking of a will not in the handwriting of the testator and requiring attestation: “A valid signature may be made on a separate piece of paper which is stuck or fastened to the body of the will and contains nothing but the signa- ' ture and attestation, provided it be shown that the execution was bona fide and regular in other respects and the paper duly fastened at or before the time of attestation.” We have found only one decided case directly in point, Fosselman v. Elder, 98 Pa., 159, which is approved in In re Harrison, 196 Pa., 576. In the Fosselman case the testatrix died leaving a will in due form, dated 1878, which was duly admitted to probate. Subsequently there was found among her valuable papers an envelope bearing the inscription, in decedent’s handwriting: “Dear Bella, this is for you to open,” and inside was found a $2,000 note, and the following writing in testatrix’s own hand: Lewistoh, 21 October, 1879. My wish is for you to draw this $2,000 for your own use should I die sudden. Elizabeth EosselmaN. *473 Tbe Court allowed tbe probate of tbe envelope as part of tbe will, saying, in tbe opinion: “Tbe only remaining question is wbetber tbe testatrix -bas sufficiently designated tbe plaintiff as tbe object of ber bounty in tbe paper tbat is claimed to operate as a codicil to ber will. Tbe court below held tbat sbe bad not, and accordingly entered judgment in favor of tbe defendant non obsiante veredicto. In tbis we tbink there was error. It is true, tbe testamentary paper of 21 October, 1879, does not designate tbe plaintiff by name, and if we bad no written evidence to sbow wbo was meant by tbe pronoun ‘you,’ tbe bequest of tbe note would be void for uncertainty; but it is a settled fact tbat tbe envelope is’ addressed to tbe plaintiff, and wby should not tbat in-dorsement in tbe bandwriting of tbe testatrix be taken as part of tbe testamentary disposition ? It is well settled tbat a will may be, written on several separate pieces of paper. It is not even essential to its validity tbat tbe different parts should be physically united; it is sufficient if they are connected by their internal sense or by a coherence and adaption of parts. Wikoff’s Appeal, 3 Harris, 281. . . . “Without pursuing tbe subject further, we are of opinion tbat tbe inscription on tbe envelope should be read as tbe preface to and in connection with tbe paper inclosed therein, and tbat they together constitute a valid testamentary disposition of tbe accompanying note, operating as a codicil to tbe will of tbe testatrix.” Tbe case of Warwick v. Warwick, (Va.) 10 S. E., 843, relied on by tbe caveators, bas facts something like those before us, but tbe opinion is based on a statute, unlike ours, as is shown by tbe decision tbat tbe paper offered for probate was not signed, although it began, “I, Abram Warwick, declare tbis to be my last will and testament,” which, as we have seen, is a signing under our statute. Tbe case of Vogle v. Lekritter, 139 N. Y., 223, also relied on, did not involve a holograph will, and tbe Court rejected an envelope as a part of a will because it was not intended as a testamentary disposition, but .as a record of the official act of tbe notary wbo prepared tbe papers. We have given tbe question involved careful consideration, and have reached tbe conclusion tbat tbe judgment ought not to be disturbed. No error.