Spencer v. Spencer, 163 N.C. 83 (1913)

Sept. 17, 1913 · Supreme Court of North Carolina
163 N.C. 83


(Filed 17 September, 1913.)

1. Wills — Probate—Notice to Executor — Codicil—Interpretation of Statutes.

Before others interested in the probate .of a will may apply for its probate, ten days previous notice must be given the executor therein named (Revisal, sec.'3123), and where an executor has probated and qualified under the will, it is equally necessary to give the statutory notice before offering for probate a separate paper-writing as a codicil.

2. Wills — Codicils—Intent—Interpretation of Statutes.

For a paper-writing to be effective as a codicil to a will, it must appear that it was the intention of the testator at the time of making it that it should take effect as a part of his will, and ' all the formalities and statutory requirements of making and executing a will must have been observed in the codicil. Re-visal, sec. 3123.

3. Same — Letters.

A letter which had been written by the testator immediately after making a formal will, and which, without being mentioned in the will, expresses the desire that its addressee should have his interest in certain personalty, does not show the animus testandi, so as to make it operate as a codicil. Alston v. Davis, 118 N..C., 203, overruled.

.4. Wills — Codicils—Insurance—Partnerships—Devises..

Partnership property is possessed per my et per tout by the partners, and no one of them may convey his separate interest in any particular part thereof. Hence, as in this case, a partner may not devise any interest he may have in a policy of life insurance made payable to the copartnership, and certainly not after he'has conveyed to the partnership all the interest he had therein.

Appeal by plaintiff from Whedbee, J., at May Term,. 1913, of Beaueort. '

Tbe action is brought to recover one-sixth of an insurance policy for $5,000, payable to a copartnership known as Spencer Brothers of Washington, North Carolina, composed of George A. and Jones Spencer. At one time the plaintiff owned a one-*84sixth interest in said copartnership. Defendants answered, denying .the ownership of plaintiff in said policy, or any part of it.

Plaintiff offered the following evidence:

Copy of the policy of insurance referred to in the pleadings.

Plaintiff offered section 4 of the answer of O- A. Spencer down to and including the word “time” in the sixth line.

Plaintiff offered a certified copy from the office of the clerk of the Superior Court of Craven County, under his hand and official seal, of' the will of the late Jones M. Spencer and the alleged codicil thereto attached, as appears to have been probated.

Upon objection by each of the defendants to the introduction of the copy of the alleged codicil, plaintiff’s counsel stated that they had no information that any written notice was ever given to the executor of Jones M. Spencer of the motion to probate the said letter as a codicil to the will of the said Jones M. Spencer, and that plaintiff had no evidence to offer that such notice was given. Defendants severally object and except to the admission of said paper.

Plaintiff introduced bill of sale’ from the plaintiff to J. M. Spencer and George A. Spencer, Book 156, page 66.

Conveyance from K. Eula Spencer to G. A. Spencer, dated 15 June, 1909.

A. G. Spencer was sworn, and testified: “I am the A. G. Spencer referred to in the paper-writing which -we call a codicil, consisting of a letter from Jones M. Spencer. I was the brother of Jones Spencer, and came out of the firm of Spencer Brothers at the time of the execution of the deed or bill of sale which has been read. I have never been paid any part of the proceeds of the policy referred to in this case. George A. Spencer told me the policy had. been paid.” (Admitted only against G. A. Spencer.)

Cross-examination: “I do not recognize the firm ledger; can’t see well enough to. The best I can see, I think it is in the handwriting of George Hepinstall. When I was a member of the *85firm we carried in. tbis ledger what we called a stock account. Tbat account represented tbe proportionate interest of each, member.

“At the time I sold out to J. M. and G. A. I do not exactly remember the relative interests ,in the firm, but they were about 10 for Jones, 1 for George, and 3 for me. I think Jones died in 1909, some time in March., He returned from his trip to Europe some time in the fall before that, several months, but not as much as six.

“George Spencer told me he had collected the policy. I do not know about the debts the firm owed at the time of the death of my brother. Never heard George Spencer say how much the debts were. He told me there was a very big trade; that they had a big sale and raised about enough to get them out of debt. .That was just before Jones died.

“My interest in the partnership would be about one-sixth. I think Jones’ was just about as much as George’s and mine put together, and George and I were pretty near the same. There was a little difference between George’s and my shares up until just a short time before I drew out.”

Plaintiff introduced a bill of sale from the plaintiff to J. M. and G. A. Spencer, dated 6 January, 1904, and duly recorded, conveying to the said J. M. and G. A. Spencer, as copartners, all the right, title, interest, and estate of plaintiff, whatever the same may be, in and to all of the partnership assets and all of the partnership property of the said firm of Spencer Brothers, and all accounts and every article of property of whatsoever kind, nature, or description,'wherever the same may be situated, which belonged to the firm of Spencer Brothers, or in which they had any interest, including the right to carry on business under the firm name of Spencer Brothers, which bill of sale also conveyed to the said Spencer Brothers all of the interest of the plaintiff, as a member of the said firm, in said insurance policy.

Plaintiff also introduced in evidence a conveyance from K. Eula Spencer, as executrix and devisee of J. M. Spencer, dated 15 June, .1909, and duly recorded, conveying all of the right, title, and interest whereof the said J. M. Spencer died seized and possessed, in and to all of the property and assets of every *86kind and description belonging to or connected with tbe business and firm of Spencer Brothers, composed of tbe said J. M. Spencer and G. A. Spencer, with a provision that tbe said G. A. Spencer should assume and pay all debts of tbe said firm.


■ ’ In tbe sum-of five thousand dollars ($5,000), and promises to pay at its home office, in tbe city of Philadelphia,- unto tbe firm of Spencer Bros, (comprised of Jones l^C., George A., and Alexander G. Spencer,), its successors or .assigns, tbe said sum insured, upon receipt of ,due proof of tbe death of tbe insured, during tbe continuance in force of this policy, upon tbe following conditions, namely:

will OB’ J. M. SPENCER.

I, J. M. Spencer, being of sound mind and good health, make this my last will' and testament. I bequeath to my beloved wife, E. Eula Spencer, my entire estate, real and personal property; and appoint her my executrix.

Witness my band and seal this 17 September, 1903.

J. M. Spencer.

Witnesses: Carrie W. ‘Cole; J. A. Jones.


Brother Alex: • New York, 6/16/08.

I am sorry you bad to go under. I hope you will save something out of it. If I die I want you to have your part of tbe five thousand insurance I took out for Spencer Brothers. I have written to brother George to see that you get it.

We will sail for southern Italy to-morrow, and will go up through the different countries to London, and then home. Will be gone ten weeks.

Give my love to Mame and Bettie.

Good-bye, Your brother,


*87Tbis letter was offered for probate, without notice to the executrix, and probated as a codicil to the above will.

Plaintiff rested.

Each defendant severally moved for judgment of nonsuit.

Motion allowed as to each.

The plaintiff duly excepted and appealed.

Ward & Grimes for plaintiff.

A. jD. McLean a,nd A. D. Ward for defendants.

BkowN, J.

The plaintiff claims title to a portion of the insurance money by. virtue' of the alleged codicil to the will of Jones Spencer. The record contains no evidence that the letter offered as a codicil was ever duly probated in any court having jurisdiction, and if it was so probated, it is -admitted in the record that it was done some time after the probate of the will, and without any notice to the executrix.

Revisal, sec. 3123, provides: “If no executor apply to have the will proved within sixty days after the death of the testator,’ any devisee or legatee named in the will, or any other person interested in the estate, may make such application upon ten days notice thereof to the executor.”

A codicil is a supplement or an addition to a will made by the testator, and to be taken as a part 'of the testament, and so intended by him at the time of making it.

The formalities to be observed in the execution of wills and codicils and the methods of probating them are for the most part governed by statutory enactments, but it is generally agreed that a codicil must be executed with the same formalities as a will, and the requirements of the statute must be strictly observed. 6 Am. and Eng., 176.

We think the provisions of section 3123 apply to the production and probate of codicils as much so as to the original will, for to be a codicil it must be testamentary in form and intended by the testator to form a part of his testamentary dispositions.

The wisdom of the statute and the cogent reasons for making-it applicable to codicils are illustrated here. In this ease the will of J. M. Spencer had been probated, the executrix had qual*88ified and executed tbe conveyance to ber codefendant, Gr. Á. Spencer, more than a year before tbe alleged codicil purports to bave been probated, and sbe bad no notice thereof whatever.

"We ag'ree with tbe learned judge of tbe Superior Court that tbe letter in evidence cannot be permitted to operate as a codicil to tbe will dated 17 September, 1903. Tbe distinguishing feature of all genuine testamentary instruments, whatever their form, is that tbe paper-writing must appear to be written animo testcmdi.

It is essential that it should appear from tbe character of tbe instrument, and tbe circumstances under which it is made, that tbe testator intended it should operate as bis will, or as a codicil to it.

In tbe case at bar tbe testator bad made bis will in New York City on tbe eve of bis departure for a European trip. This so-called codicil is a letter written to bis brother immediately after be bad executed bis will, and makes no reference to it. It is scarcely probable that tbe testator regarded or intended such a letter to be in any sense a part of bis will. 1 Redfield on Wills, star p. 174 and notes; St. Johns Lodge, v. Callender, 36 N. C., 335; Simms v. Simms, 27 N. C., 684.

Tbe case of Alston v. Davis, 118 N. C., 203, is relied upon by plaintiffs. We admit that it sustains plaintiffs’ position, but we are unwilling to follow it as a precédent. It is weakened as such by a brief but expressive and forceful dissent, and by ■the further fact that another member of tbe Court took no part in tbe decision.

If tbe letter in question was duly probated in Craven County, as a codicil to tbe will, we doubt if it can be attacked in this •collateral manner. Possibly tbe executor should proceed to have the record and judgment of probate set aside in tbe court where it was made. This point, however, is not made by tbe learned counsel for plaintiff, and, therefore, we bave considered the ease, as it was presented, on its merits.

Tbe third and last contention of tbe defendants appears to us conclusive of this case.

*89Tbe insurance policy in question was tbe property of tbe copartnership, a part of its assets, and was in no sense owned by tbe individual copartners.

Tbe bill of sale, or assignment, dated 6 January, 1904, executed by plaintiff to J. M. and George A. Spencer, conveyed to them all of plaintiff’s interest in tbe firm’s property and assets, including tbe policy, and it became tbe property of tbe firm as a copartnership, ,and not the property of Jones Spencer as an individual.

At tbe date when tbe letter was written, tbe plaintiff owned no part of said policy, as be bad conveyed it to bis two associates.

J. M. Spencer, in using tbe words “your part of tbe $5,000” did not undertake to give bis brother bis (Jones’) part. In fact, Jones Spencer could not convey or bequeath by will bis interest in an isolated and distinct item of tbe partnership property.

It is well settled that a partner cannot transfer bis undivided interest in any specific article belonging to tbe firm (22 A: and E. Ene., page 104) ; and this is so because each partner is possessed per my et per tout; or, in other words, each has a joint interest in tbe whole, but not a separate interest in any particular part of tbe partnership property. 22 A. and E. Enc., page 95; American Digest, Cent. Ed., vol. 33, sec. 143 (c).

It is also held that an action cannot be maintained' on an assignment of tbe interest of one partner in a partnership claim, unsupported by proof of tbe dissolution of tbe firm, or that tbe partner’s interest was entire (30 Oye., 495) ; and that property payable or transferable to others at tbe death of tbe testator may not be disposed of by will. 40 Cyc., 1050.

Tbe judgment of nonsuit is