Gore v. Ligon

Smith, C. J., delivered the opinion of the court. Appellant’s contentions are, first, that the will was not attested by one of the three subscribing witnesses in the manner required by law, and therefore is void; second, that the will was revoked by reason of a subsequent conveyance of all of the property devised. It being admitted that two of the witnesses who attested the will complied with the statute in so doing, it is wholly immaterial whether the third complied therewith or not, for the attestation of two witnesses is all that the statute requires. Section 5078, Code of 1906. [662] The rule, conceding that such there he, that a conveyance subsequent to the making of a will of the property therein devised operates in effect as a revocation of the-will, can have no application here, for the reason that the devise to appellee Ligón was not of specific property, or of the property owned by the testatrix at-the time of its execution, but was a devise of all of the property of which she might die seised and possessed. Moreover, a conveyance by a testatrix of property devised does not result, strictly speaking, in a revocation of the will, but results simply in a withdrawal of the property from the operation thereof. The will, therefore, in such case should be admitted to probate, and its effect determined when the devisee prefers his claim to the property. 40 Cyc. 1206 Page on Wills, page 318; In re Ackels’ Estate, 23 Misc. Rep. 321, 52 N. Y. Supp. 246; McCraine v. Clarke et al., 6 N. C. 317. Affirmed*