In Re the Will of Rowland

CONNOR, J. On a former appeal by the propounders from a judgment in this proceeding adverse to them (In re Will of Rowland, 202 N. C., 373, 162 S. E., 897), it was said: “Whether the paper-writing in question is the valid will of H. L. Eowland, deceased, we express no opinion, but there was error in holding, as a matter of law, that it is not sufficient in form to constitute a will. In re Johnson, 181 N. C., 303, 106 S. E., 841; Alexander v. Johnston, 171 N. C., 468, 88 S. E., 785. It is dis-positive on its face, and the name of the alleged testator is inserted therein, in his own handwriting, followed by the words: ‘This being my will.’ C. S., 4131. In re Westfeldt, 188 N. C., 702, 125 S. E., 531; In re Harrison, 183 N. C., 457, 111 S. E., 867; In re Bennett, 180 N. C., 5, 103 S. E., 917.” In In re Southerland, 188 N. C., 325, 124 S. E., 632, it is said: “It is not denied that the burden was on the propounders to establish the formal execution of the writing (In re Chisman, 175 N. C., 420, 95 S. E., 769), but it is insisted that, upon proof of such execution, the animus testandi was to be inferred. This principle obtains where the testamentary character of the instrument appears on its face, and only a question of construction is presented (Outlaw v. Hurdle, 46 N. C., 150) ; for when the animus testandi is established the character of the instrument is fixed; but when the instrument on its face is equivocal and it is doubtful whether it is intended to operate as a will, a deed, or a gift, parol evidence may be considered.” The paper-writing offered for probate in this proceeding as the will of H. L. Eowland is not equivocal on its face, nor can there be any doubt that it was intended by the writer as his will, to become effective at his death, as a disposition of the lands described therein. The animus testandi is conclusively presumed from the language of the paper-writing. It was error to submit to the jury the question of the intention of the writer of the instrument. The proceeding is remanded for a new trial on the issues tendered by the propounders. New trial.