Hughes v. Smith, 64 N.C. 493 (1870)

June 1870 · Supreme Court of North Carolina

64 N.C. 493

WILLIAM H. HUGHES, Ex’r, and others v. CHARLES SMITH and others.

A script purporting to be a holograph will, was found in a drawer inside of a desk, between a bag of gold coin and a bag of silver coin; and immediately above the drawer, in pigeon-holes, were found notes, bonds and other valuable papers, arranged in files; the drawer and pigeonholes were secured by the same door and lock: Held, that the script was properly deposited, under the act defining the requisites of holograph wills.

'The change in that act as found in the Revised Statutes, by which, as reproduced in the Revised Code, “ or ” has become “ and,” does not affect the construction previously given.

(Little v. Lockman, 4 Jon. 494, and Hill v. Bell, Phil. 122, approved.)

Caveat, tried before Watts, J., at Spring Term 1870 of Northampton Court.

The script propounded purported to be a holograph, and the only question was, whether it had been found in a proper place of deposit. That place was an upright desk, with a door swinging on binges at tbe bottom, and looked at tbe top. Tbe door protected a space occupied, above by pigeon-boles,. and, below, by two small drawers wbicb were closed but bad no locks. In tbe pigeon-boles were found, — filed, and covered with a clotb-wrapper, — notes, &c., belonging to tbe deceased, to tbe value of seventy thousand dollars or more. Tbe script was found in one of tbe drawers. Above it was a bag containing gold coin, ($177 50), and below it, a bag containing silver coin, ($56 00).

His Honor being of opinion that tbis was not a proper place of deposit, within tbe meaning of the statute, there - was a verdict and judgment accordingly.

Tbe propounders thereupon appealed.

Bragg, and Peebles & Peebles, for tbe appellants.

Smith and Barnes, contra.

1. Tbe requirements of tbe statute must be strictly complied', with. Graham v. Graham, 10 Ire. 219, Little v. Loclcman,. 4 Jon. 494, In re Cox’s Will, 1 Jon. 321, 1 Bedf. Wills, 231.

2. Tbe script must be found amiong tbe valuable papers and effects of tbe deceased. Bev. Code, c. 119, s. 1.

Hick, J.

Tbe only question presented, is whether tbe holograph script propounded for probate, was found in such a. place of deposit as to satisfy tbe requirements of tbe statute: Bev. Code, cb. 119, sec. 1. Similar questions have often been before tbis Court, and tbe principles by wbicb they are governed, are well settled: Little v. Lockman, 4 Jon. 494; Hill v. Bell, Phil. 122.

Tbe requirements of tbe statute are sufficiently compbed with if tbe script is- found among tbe valuable papers and effects, under such circumstances as to show that tbe deceased regarded it as a valuable paper, and desired it to take effect as Ms will. The change of the conjunction “or,” in the Bevised Statutes, to the conjunction “and,” in the Be-vised Code, does not affect the construction of the statute. If the word “and” is taken in its strict conjunctive sense, the statute would be virtually repealed, or its benefits greatly diminished; as but few persons who manage their-business with order and system, keep their valuable papers and effects mixed up together. Notes, bonds, &c., are usually kept together M proper files, and currency, coin, jewels, &c., are deposited in a more secret place.

In the-case of Little v. Lockman, supra, the script propounded, was found in the drawer of a bureau, among some useless papers and rubbish, and there were valuable papers and effects kept in another drawer of the same bureau. Under such circumstances the Court properly held that the script was not found in such a place of deposit as was contemplated by the statute. In our case the script was found in a drawer inside of a desk, deposited between a bag of gold coin, and a bag of silver coin, and just above the drawer, in pigeon-holes, were found notes, bonds and other valuable papers properly arranged in files. The drawer and pigeon-holes were secured by the same door and lock. This drawer was a very appropriate place for the keeping of the coin, as it was concealed from view when the desk was opened, and was such a place of deposit for the holograph script as to meet the strict requirements of the statute.

There was error in the ruling of his Honor, and there must be a venire de novo.

Per Curiam. Venire de novo.