In re Will of Jenkins

"Walker, J., after stating tbe case: There was sufficient evidence in tbe case to prove that tbe script was found in tbe drawer with policies of insurance, some of which bad expired, and that it had been placed there by W. T. Jenkins, in an envelope upon which be bad written the. word “Important,” and — 434 — that Levi Browning, when he found it, immediately took it from the envelope and read it to his wife, and the next morning she read it. In the paper, the testator devised and bequeathed his property to his nieces, Bessie M. Liles and Carrie E. Browning, wife of Levi Browning, who seem to have had the best claim upon his bounty, and appointed as his executor Hon. E. L. Travis, who had been his attorney and legal adviser. The formal execution of the script was sufficiently proved before the clerk, and at the trial of the issue devisavit vel non; but the contention of the caveators is that the paper was not found “among the valuable papers and effects” of the deceased, as required by statute (Revisal, see. 3127). Prior to the enactment of the Revised Code, the language of the statute was “that such will was found among the valuable papers or effects of the deceased.” We do not think the substitution of the copulative for the disjunctive conjunction was intended to make any substantial change in the law, and the word “and” should be construed as “or.” Otherwise, a person owning effects of ever so much value, but not having any valuable papers, or a person having valuable papers, but no valuable effects, could not execute a valid holographic will. We cannot believe the Legislature contemplated such a radical change in the law and that any such result should follow the change of a single word, and it has been so held, with good reason. Hughes v. Smith, 64 N. C., 493; Winstead v. Bowman, 68 N. C., 170. In the last case, Justice Rodman said: “We do not think this substitution (‘and’ for 'or’) was intended to make any change in the meaning of the statute. At all events, it made none to affect the present case. We only notice it to put it out of the way.” Besides, the word “effects” is comprehensive in meaning and is broad enough to include policies of insurance, which will answer both descriptions, valuable papers and effects. Brown v. Eaton, 91 N. C., 26. We will now proceed to consider the other question, whether the paper was found in a proper place of deposit. “The statute of frauds in England, in relation to wills, and our act upon the same subject, have in view the same object, namely, the protection of the heirs at law, and next of kin of a decedent, from the effect of a forged or false paper as a will. For that purpose — 435 — many forms and ceremonies are required to be observed in the execution of sucb instruments. "Wit]i regard to attested wills, tbe requisites of the English, and our statute, except as to the number of witnesses, are substantially the same. It is well known to the profession how strictly — we may say, sternly — the courts, in both countries have demanded a compliance with these provisions of the law. The same policy must govern us when we come to decide whether the requisitions of our statutes have been complied with in the execution of a paper-writing, propounded as a holograph will. One alternative requisition of the statute is that it must be ‘found among the valuable papers or effects’ of the alleged testator.” Little v. Lockman, 49 N. C., 495. The provisions of the 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 holograph script as a will; but this does not mean that the construction of the statute should be so rigid and binding as to defeat its clearly expressed purpose. It must be construed and enforced strictly, but at the same time reasonably. “The requirements of the statute are sufficiently complied with if the script is found among the valuable papers and effects, under such circumstances as that the deceased regarded it as a valuable paper (worthy of preservation) and desired it to take effect as his will.” Hughes v. Smith, supra. This Court said in Winstead v. Bowman, 68 N. C., 110: “We are led to conclude that the phrase ‘among the valuable papers and effects,’ cannot, necessarily and without exception, mean ‘among the most valuable,’ etc. If that were required, it might be difficult for one who had two or more places for keeping his valuable papers to know in which he could safely place his will. The values in cash would be liable to change more or less frequently. It might well happen that a bond or a large sum might be paid off and the money deposited in bank or invested in real estate, so that the place which contained the most valuable papers to-day might to-morrow contain only those of comparatively insignificant value. The phrase cannot have a fixed and unvarying meaning to be applied under all circumstances. It can only mean that the script must be found among such papers and effects as show that the de — 436 — ceased considere^ it a paper of value, one deliberately made and to be preserved, and intended to bave effect as a will. This would depend greatly upon the condition, and business, and habits of the deceased in respect to keeping valuable papers, and the place and circumstances under which the script was executed, viz., whether at home or on a journey, etc. It was not the intention of the Legislature to destroy, or unreasonably restrict, the power of making a holograph will; but simply to assure that the writing offered as a will was really and deliberately intended as such. The place in which it is found, supposing it to be found among valuable papers and effects, is but one circumstance in evidence upon that issue.” Referring to this passage in Judge Rodman’s opinion, the present Chief Justice said In re Sheppard’s Will, 128 N. C., 54: “In Winstead v. Bowman, 68 N. C., 170, that Court criticised, if it does not overrule, the narrow rule which-had been laid down in Little v. Lockman, 49 N. C., 494,” citing with approval Tate v. Tate, 30 Tenn. (11 Head.), 466, to this effect: “The intention of the statute is that it shall appear to be a will whose existence and place of deposit were known to the testator, and that he had it in his care and protection, preserving it as his will”; and, also, Reagan v. Stanly, 179 Tenn. (11 Lea), 316, to this effect: “In a diary was found, imbedded among other entries, a disposition of property, written and signed. This diary was found among his books of account, and the will therein written was (held to have been properly) admitted to probate.” Substantially to the same effect is Harper v. Harper, 148 N. C., 453. The fact that it is found among the writer’s valuable papers and effects 'implies that it must have been placed there by him, or with his knowledge and consent or approval, with the intent that it should operate as his will, and not that it was deposited surreptitiously by another person for the purpose of defeating instead of executing his will. If the paper is so found, it will be presumed that the deposit of it in the place was made by him or with his assent, and in the absence of evidence to the contrary or of suspicious circumstances, no proof of the fact is required. Pritchard on Wills, see. 236; Hooper v. McQuary, 5 Cold., 136. The statute does not demand proof that the author of the paper — 437 — made tbe deposit, but only tbat it was found among bis valuable papers and effects, and proof of tbis fact is quite sufficient, at least, in tbe first instance and wben there is no countervailing proof. “ ‘Valuable papers’ witbin tbe meaning of tbe statute are sucb papers as are kept and considered worthy of being taken care of by tbe particular person, having regard to bis condition, business, and habits of preserving papers. They do not necessarily mean tbe most valuable papers of tbe decedent even, and are not confined to papers having a money value, or to deeds for land, obligations for tbe payment of money, or certificates of stock. Tbe requirement is only intended as an indication on tbe part of the writer tbat it is bis intention to preserve and perpetuate tbe paper as a disposition of his property, and tbat be regards it as valuable; consequently, tbe sufficiency of tbe place of deposit to meet tbe requirement of tbe statute will depend largely upon tbe condition and arrangements of tbe testator.” Pritchard on Wills, sec. 237; Winstead v. Bowman, 68 N. C., 170; Marr v. Moot, 2 Head., 303 (S. E. 5 Sneed, 385); Allen v. Jeter, 6 Lea, 672; Reagan v. Stanly, 11 Lea, 316. Applying these .principles to tbe facts of our case, it would seem tbat there bad been sucb a full compliance with tbe provisions of tbe statute as to constitute tbe paper-writing found in tbe drawer of tbe table tbe will of tbe writer. He- appears not to have been very careful in handling bis papers. There were these places of deposit: bis desk in tbe store, bis bureau in bis borne, bis bookcase, and tbe drawer of tbe table in tbe ball of bis bouse. It would appear tbat of tbe four, be regarded tbe drawer of tbe table as tbe most important place of deposit, for be not only placed in it bis policies of insurance, but tbe script was found in an' envelope on which be bad written tbe word “Important.” What could be more indicative of bis desire tbat tbe paper should take effect as bis will; and of tbe fact tbat be considered tbe place as one for tbe deposit of bis valuable papers, than bis words tbat tbe papers inclosed in tbe envelope were “important” ? But aside from tbis fact, a policy of insurance is a valuable paper (Harper v. Harper, supra; Hooper v. McQuary, supra) witbin tbe meaning of tbe statute, and it was evidently so considered by him. As testified by one of tbe wit — 438 — nesses, tbe papers in tbe other places of deposit were not so kept as to show that be regarded them as of any great value, nor, under tbe circumstances, would it be any more likely that bis will should have been found there than in tbe drawer of tbe table at bis home ? Tbe court left it to tbe jury to say whether, under all tbe facts and circumstances, W. T. Jenkins bad placed tbe paper in tbe drawer with tbe intention to preserve and take care of it as his will, telling them that within tbe meaning of tbe law a policy of insurance is a valuable paper. The jury were properly instructed as to bow they should consider and apply the'evidence in tbe case. We do not see why this was not a proper instruction, and as much so as similar ones which were given in tbe cases we have cited. Whether tbe table drawer was a proper place of deposit under tbe statute was a question to be determined largely by tbe jury upon tbe particular facts of tbe case. It was certainly not error to submit tbe question to tbe jury instead of deciding it as matter of law. In re Sheppard’s Will, supra. If tbe jury found that W. T. Jenkins placed tbe paper in tbe envelope, with tbe policies of insurance, and deposited them in tbe drawer, intending that it should be bis will, tbe requirements of tbe statute were fully observed, and their verdict declaring tbe paper to be bis last will and testament was warranted in law. Tbe case of Brogan v. Barnard, 115 Tenn., 260, cited by appellant’s counsel, is not in point. It was decided upon tbe ground that tbe stamps' and stationery were not valuable papers, as they did not record anything, and, besides, they did not belong to tbe writer of tbe script, but to tbe United States. We find no error in tbe rulings or charge of tbe court. No error.