In re the Will of Penley

WELLS, Judge. Propounders’ principal assignment of error goes to the trial court’s denial of their motion for directed verdict. They argue that caveators did not offer a sufficient writing under the statute to be subject to probate. We disagree. A holographic will is one that (1) is entirely in the testator’s own handwriting, (2) bears the testator’s name in his own handwriting, and (3) was found among the testator’s valuables. N.C. Gen. Stat. § 31-3.4 (1984). Such a writing may be offered for probate only upon the testimony of at least one witness that it was found among the testator’s valuables, and of at least three witnesses that they each believe it to be entirely in the testator’s own handwriting. Id. at § 31-18.2. A witness is competent to testify regarding the authenticity of a testator’s handwriting where it is shown that such witness is familiar with both the testator’s handwriting and signature. In re Will of Loftin, 24 N.C. App. 435, 210 S.E.2d 897, cert. denied, 286 N.C. 545, 212 S.E.2d 169 (1975). In reviewing the denial of a motion for directed verdict under Rule 50 of the North Carolina Rules of Civil Procedure, the standard to be applied is whether the evidence, taken in the light most favorable to the nonmovant and giving the non-movant the benefit of every reasonable inference arising therefrom, is sufficient to go to the jury. Alston v. Herrick, 76 N.C. App. [657] 246, 332 S.E.2d 720 (1985), affirmed, 315 N.C. 386, 337 S.E.2d 851 (1986). The court should deny a motion for directed verdict if there is more than a scintilla of evidence to support the nonmovant’s prima facie case. Rice v. Wood, 82 N.C. App. 318, 346 S.E.2d 205, cert. denied, 318 N.C. 417, 349 S.E.2d 599 (1986). Applying these principles to the case at bar, we find no error. Caveators presented testimony that the holographic writings were found among papers which included the titles to testator’s car and house trailer, copies of property deeds, health insurance papers, and cancelled bank notes. Caveators further presented testimony that testator duly executed his signature on the writings before a notary public. Finally, caveators presented the testimony of three witnesses who all testified that they were familiar with both the handwriting and signature of the testator and that they believed the subject writings and signatures to be in testator’s own hand. It is true that the familiarity of one witness with testator’s handwriting was based on knowledge acquired some forty years earlier during high school. This, however, does not go to admissibility but to credibility. In re Williams’ Will, 215 N.C. 259, 1 S.E.2d 857 (1939). Moreover, when coupled with the testimony of the other two witnesses, one of whom was the testator’s former wife, the evidence that the writings were in testator’s own hand, taken in the light most favorable to caveators, was sufficient to take the case to the jury. Because caveators presented sufficient indicia of a holographic will under N.C. Gen. Stat. § 31-3.4 and because they satisfied the requirements of N.C. Gen. Stat. § 31-18.2, propounders’ motion for directed verdict was properly denied. Propounders’ remaining assignments of error have been carefully considered, are found to be without merit, and are overruled. We have also carefully reviewed the trial court’s order for counsel fees and the materials submitted in support of caveators’ petition for counsel fees, and we affirm that order. In the trial, we find No error. The order for counsel fees is Affirmed. Judges Phillips and Parker concur.