In re Leonard, 218 N.C. 738 (1940)

Dec. 20, 1940 · Supreme Court of North Carolina

218 N.C. 738

In re Petition of MRS. J. THOMAS LEONARD for Appointment as Executrix Under the Will of FLORENCE SICELOFF LEONARD.

(Filed 20 December, 1940.)

1. Executors and Administrators § 1—

On tbe first page of tbe holographic will in question, testatrix made testamentary disposition of her property, and on the second page, labeled “all I have is this,” she listed her property and those having same in their possession, and included in the body of the list the words “Mrs. J. Thom Leonard have this in charge.” Held,: The phrase quoted does not designate the person named therein to administer the estate nor commit the execution of the will to her, and she is not entitled to he appointed executrix.

3. Wills § 31—

The rule that a will should be interpreted from its four corners to carry out the intent of testatrix as gathered therefrom does not permit the writing into the will by the court essential words not appearing therein.

Appeal by respondents from Nettles, J., at September Term, 1940, of Davidsokt.

The clerk of the Superior Court of Davidson County on 5 September, 1940, admitted to probate the holograph will of the late Florence Siceloif Leonard, who died 24 August, 1940, consisting of two pages, the first of which reads:

“My Request

“I want after all my expences is paid

One Thousand Dollars ($1,000) be given to Nazareth Orphans Home.

One Thousand dollars ($1,000) be given Bethany Reform Church.

The rest be equaly divided between my nephews and neices just a like.

My personel property be divided as you see best.

FLORENCE SlCELOEE LEONARD

“May 20, 1935.”

And the second page of which reads :

“All I Have Is This.

“One bon of $225. dollars in Kinston Bank.

Small amount of money in Winston-Salem Bank.

Sister Mary has my bank book.

Lexington Bank & Mortgages have rest of money.

Mrs. J. Thom Leonard have this in charge

Mrs. J. Thomas Leonard have few of my things such as quilts feather bed pillows carpet & few dishes

Pennie have few things be longs to me.

Do away with them as you see best.

Florence Siceloee Leonard

“May 20, 1935.”

On the day the will was filed for probate Mrs. J. Thomas Leonard filed a petition asking that she be appointed executrix, which petition the clerk of tbe Superior Court denied, adjudging as a matter of law tbat there was no appointment of an executrix made in said will.

From tbis judgment tbe petitioner appealed to tbe judge of tbe Superior Court, wbo reversed tbe judgment of tbe clerk and remanded tbe case witb tbe direction tbat tbe clerk appoint Mrs. J. Tbomas Leonard executrix of tbe last will and testament of Florence Siceloff Leonard. To tbis judgment tbe respondents preserved exception and appealed to tbe Supreme Court.

Don A. Walser and Paul B. Paper for petitioner, appellee.

P. V. Gritcher and W. F. Brinkley for respondents, appellants.

ScheNCK, J.

Tbe sole question presented on tbis appeal is: “Does tbe will of tbe late Florence Siceloff Leonard name an executrix?” We are constrained to answer in tbe negative.

Tbe only mention made of Mrs. J. Tbomas Leonard is in tbe second page of tbe holograph will labeled “All I have is tbis.” Tbe mention of tbe name of the petitioner, we think, is made simply to designate or locate certain property of tbe testatrix which tbe petitioner bad in charge or in her possession. We do not see in these words any commitment of tbe execution of her will to Mrs. J. Tbomas Leonard or any designation of her as tbe person whom tbe testatrix desired to administer her estate. An executor is “One to whom another man commits by bis last will tbe execution of tbat will and testament.” 2 Bl. Comm., 503.

While it is our duty to interpret tbe will from its four corners, and to carry out tbe intent of tbe testatrix as gathered therefrom, we are not permitted to write into tbe will tbat which the testatrix failed so to do.

Tbe judgment of tbe Superior Court is

Reversed.