Pounds v. Litaker, 235 N.C. 746 (1952)

June 11, 1952 · Supreme Court of North Carolina

235 N.C. 746

MILLIGE RUPLEY POUNDS and JOHN CLYDE POUNDS v. CONIE POUNDS LITAKER, JACOB ARCHIE POUNDS, ELLEN POUNDS PROPST, MARGARET LUCILLE POUNDS HOWARD, ELMA FLORENCE POUNDS SCHADT, ETHEL MAE POUNDS, FRANK POUNDS, CARL POUNDS and EMILY POUNDS SWINK.

(Filed 11 June, 1952.)

1. Wills § 8—

While it is not required that a holographic will be dated or the place of its execution be stated therein, it is necessary that the testator’s name be inserted in his own handwriting in some part of the instrument. G.S. 31-3, G.S. 31-18 (2).

2. Same—

Every word of a holographic will must be in the handwriting of testator, and while words printed on the paper will not invalidate the instrument but will be treated as surplusage if such printed words are not essential to the written words, printed words or letters may not be used to supply any essential part of the instrument.

3. Same—

Where dispositive words appears in the handwriting of deceased but her name is not written in any part of the instrument, her engraved monogram on the paper may not be used to supply the requisite signature, and the paper writing is ineffectual as a holographic will.

Appeal by propounders from Rousseau, J., March Term, 1952, of Forsyth.

This is a proceeding instituted before the Clerk of the Superior Court of Forsyth County, North Carolina, to probate in solemn form a paper writing alleged to be the holographic will of Hattie Pounds Efird, deceased.

The purported will was written on the personal stationery of Hattie Pounds Efird, deceased. In the upper left-hand corner of the paper writing is an engraved monogram containing the letters “HEP,” and the written portion thereof is as follows:

“It is my will and desire that the children of my brother Arthur B. Pounds do not participate in any way in the division of my estate — otherwise that my estate be divided according to the laws of the state of N. C.

“This tbe.day of.1950.”

Tbe paper writing was found in a sewing basket belonging to Mrs. Efird along with a list of ber furniture, ber glasses, bearing aid, and a little thread.

An objection to tbe probate of tbe paper writing was filed with tbe Clerk of tbe Superior Court of Eorsytb County by two nephews and a niece of tbe deceased, wbicb raised tbe issue of devisavii vel non. Tbe Clerk, however, proceeded to bear tbe evidence and entered an order refusing to admit tbe will to probate. An appeal was taken from tbe Clerk’s ruling to the Superior Court.

When tbe cause came on for bearing, tbe trial judge held that tbe paper writing was not a valid will and instructed tbe jury tbat if they were satisfied from tbe evidence they bad beard, tbat tbe evidence was true, it would be their duty to answer tbe issue “No.” It was so answered and judgment entered accordant therewith.

Tbe propounders appeal and assign error.

Ratcliff, Vaughn, Hudson, Ferrell & Carter and Womble, Carlyle, Martin & Sandridge for propounders, appellants.

E. T. Bost, Jr., and H. W. Calloway, Jr., for caveators, 'appellees.

DeNNy, J.

This appeal involves tbe question whether or not tbe engraved monogram of Mrs. Efird, wbicb appears on tbe paper writing under consideration, may be construed to be ber signature. If such monogram is insufficient as a signature within tbe meaning of tbe statute with respect to tbe execution of holographic wills, then it will be unnecessary to consider tbe other exceptions presented and argued.

It is provided by statute G.S. 31-18 tbat wills must be admitted to probate only in tbe manner prescribed therein. Sub-section 2 of this statute, among other things, provides, “In case of a holograph will, on tbe oath of at least three credible witnesses, who state tbat they verily believe such will and every part thereof is in tbe bandwriting of tbe person whose will it purports to be, and whose name must be subscribed thereto, or inserted in some part thereof.”

It is not required by our statute tbat a holographic will be dated or tbe place of its execution be stated therein. In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876.

It is likewise held in tbe above case tbat where tbe “words appearing on a paper writing in tbe bandwriting of tbe deceased person are sufficient, as in tbe instant case, to constitute a last will and testament, tbe mere fact tbat other words appear thereon, not in such bandwriting, but not essential to tbe meaning of tbe words in such bandwriting, cannot be held to defeat tbe intention of tbe deceased, otherwise clearly expressed, that such paper writing is and shall be his last will and testament. . . . The words in print appearing on the sheets of paper propounded in the instant case are surplusage. They are not essential to the meaning of the words shown by three credible witnesses to be in the handwriting of Mrs. S. A. Lowrance. These words, without the printed words, are sufficient to constitute a testamentary disposition of property, both real and personal.” In re Will of Parsons, 207 N.C. 584, 178 S.E. 78; In re Will of Smith, 218 N.C. 161, 10 S.E. 2d 676; In re Will of Wallace, 227 N.C. 459, 42 S.E. 2d 520; In re Will of Goodman, 229 N.C. 444, 50 S.E. 2d 34.

An instrument, however, may not be probated as a holographic will where it contains words not in the handwriting of the testator if such words are essential to give meaning to the written words of the testator. In re Will of Wallace, supra; In re Will of Smith, supra; In re Wall’s Will, 216 N.C. 805, 5 S.E. 2d 837.

Our decisions are in accord with what is said in 57 Am. Jur., Wills, section 634, page 433, et seq.; to wit, “The general rule under statutes validating holographic wills is that every word in such a will must be in the handwriting of the testator. ... A will in the form of a holographic instrument is invalidated by the appearance therein of words inserted by a rubber stamp or in the handwriting of one other than the testator, which have been adopted by him as a part of his will. An instrument which contains printed matter is not entitled to probate as a holographic will where the printed matter aids in expressing the intention of the testator. . . . The mere fact the testator used a blank form whether of a will or some other instrument does not invalidate an otherwise valid will if the printed words may be entirely rejected as surplusage. . . . There is however authorities to the effect that a testamentary instrument is valid as a holographic will, although it contains words not in the handwriting of the testator, if such words are not necessary to complete the instrument in the holographic form, and do not affect the meaning.”

In the present case, if we treat the engraved monogram, which is not in the handwriting of the testatrix, as surplusage, the propounders must fail.

In view of the statutory provisions with respect to the probate of a holographic will, and our decisions pertaining thereto, we hold that the engraved monogram of the testatrix, appearing on the instrument offered for probate in solemn form as her last will and testament, may not be considered as a part thereof. The monogram is not in her handwriting and may not be construed to be her signature within the meaning of G.S. 31-3 and G.S. 31-18, subsection 2.

The judgment of the court below is

Affirmed.