In Re Will of Seymour

Adams, J. The appeal presents the sole question whether the instrument which was probated in common form is sufficient in law to constitute the maker’s will and testament, for the caveators concede that if his Honor’s instruction was erroneous issues should have been submitted to the jury on the questions of undue influence and the want of mental capacity. It was shown on the trial that the entire paper-writing, excepting the signature of the two witnesses, is in the handwriting of the maker, and that the words “This also constitutes my last will” were inserted some time after the remainder of the instrument had been prepared, but. before it was signed. The maker acknowledged the execution of the paper before a justice of the peace, and upon the clerk’s certificate of probate it was recorded during her lifetime in the office of the register of deeds of Moore County as a power of attorney. After her death it was admitted to probate in common form as her last will and testament. One of the essential elements of a will is a disposition of property to take effect after the testator’s death. A testament has been variously defined to be the “declaration of a man as to the manner in which he would have his estate disposed of after his death”; “continuing title to the testator’s property after his death in such persons as he shall name”; “a just sentence of our will, touching that we would have done, after our death”; “the expression of that which one may lawfully require to *420 be done after Ms death”; and “the legal declaration of a man’s intention, which he wills to be performed after his death.” 1 Jarman on Wills, 26; Schouler on Wills, 1; Gardner on Wills, 1; Redfield on Wills, 6; Payne v. Sale, 22 N. C., 458. It is true that no particular form of words is necessary to express an intention to dispose of a person’s property after his death, and the use of inartificial language will not be permitted to defeat an apparent intention expressed in an instrument which complies with the formalities of law. In re Edwards, 112 N. 0., 371. “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.” 1 Jarman, 21. Accordingly it has been held that a letter, or a deed, or a paper-writing-in the form of a contract, or other writing, will be valid as a will if it complies with the requirements ordinarily necessary to the execution of such an instrument. In re Bennett, 180 N. C., 8; In re Ledford, 176 N. C., 610; Richardson v. Hardee, 15 L. R. A., 635; Milam v. Stanley, 17 L. R. A. (N. S.), 1127; Ferris v. Neville, 89 A. S. R., 486. So the question whether a written instrument constitutes a will must be determined by applying the tests that are generally recognized and approved by the courts. Aside from questions regarding execution, Gardner says the test to determine whether an instrument is a will is the presence of the testamentary intent — the animus testandi. This may be manifested by an intention to appoint an executor or a guardian for minor children, or by 'making some positive disposition of the testator’s property— neither the appointment of the executor or guardian nor the disposition of the property to take effect in any way until the testator’s death. It should be noted, however, that every expression of intent, even if such intent is not to operate until the death of the person entertaining it, is not the expression of -a testamentary intent. Apart from the appointment referred to, a written instrument to be a will must make some positive disposition of the testator’s property, and if it fails to do this, it is not a will and testament. Gardner, supra, 15, 16. And on p. 19 the same writer says: “To determine whether the document itself discloses a testamentary intent, two tests are commonly resorted to, viz., whether the instrument operates to create any interest prior to the death of the maker, and whether it is revocable during the life of the maker. If under the instrument any interest vests, or if such interest fails to vest merely because of lack of delivery of- the instrument, then it is not a will. In other words, if any interest either vests or is capable of vesting prior to the death of the maker, the instrument is not a will.” We have no hesitation in saying that the instrument in question, when tested by these principles, falls short of a testamentary disposition *421 of property. Tbe maker certified “tbat I . . . invest my busband witb full power of attorney . . . for tbe purpose of acting for me in all business matters.” Tbe busband was “invested” witb authority to manage tbe property in praesmii; but in no way does tbe paper-writing purport to dispose of sucb property either during tbe lifetime of tbe maker, in which case it would not be a will, or after her death. Tbe clause “This also constitutes my last will” does not operate as a disposition of tbe maker’s property to take effect after her death, because tbe word “this” refers to tbe instrument in controversy, which is merely a power of attorney relating to tbe management of tbe property in her lifetime. Probably Mrs. Seymour intended to make a will and thought she bad accomplished her purpose; but a will cannof be established by merely showing an intent to make one. Nor can this conclusion in any wise be affected by evidence offered to show tbat tbe alleged testatrix said “she wanted Fred to have what she bad,” 'and treated tbe instrument as her will. It contains no latent ambiguity to be explained by parol evidence; what tbe maker intended to say is clearly stated. “"While extrinsic evidence may be admitted to identify tbe devisee or legatee named, or tbe property described in a will, also to make clear tbe doubtful meaning of language used in a will, it is never admissible, however clearly it may indicate tbe testator’s intention, for tbe purpose of showing an intention not expressed in tbe will itself, nor for tbe purpose of proving a devise or bequest not contained in tbe will. It is a ‘settled principle tbat tbe construction of a will must be derived from tbe words of it, and not from extrinsic averment.’ ” Bryan v. Bigelow, 107 A. S. R., 67; McIver v. McKinney, ante, 393. An examination of tbe record discloses No error.