In Re Will of Mucci

209 S.E.2d 332 (1974)

23 N.C. App. 428

In the Matter of the WILL of Lawrence Adolph MUCCI, Deceased.

No. 7428SC734.

Court of Appeals of North Carolina.

November 6, 1974.

Certiorari Allowed and Appeal Dismissed January 7, 1975.

*334 G. Edison Hill, Asheville, for propounder, George H. Johnson, Jr.

Morris, Golding, Blue & Phillips by James F. Blue, III, Asheville, for Mary E. Mucci, party aligned with propounder.

Richard B. Ford, Asheville, for caveators.

Certiorari Allowed and Appeal Dismissed by Supreme Court January 7, 1975.

HEDRICK, Judge.

Since the letter dated 25 September 1971 was admittedly in the handwriting of and signed by Dr. Mucci, our primary concern on this appeal is whether the letter was intended by Dr. Mucci to be a testamentary disposition of his property.

"The distinguishing feature of all genuine testamentary instruments, whatever their form, is that the paper-writing must appear to be written animo testandi. It is essential that it should appear from the character of the instrument, and the circumstances under which it is made, that the testator intended it should operate as his will or as a codicil to it." Spencer v. Spencer, 163 N.C. 83, 88, 79 S.E. 291, 293 (1913).

Whether the requisite testamentary intent is present must be determined not only from a consideration of the language in the paper itself but from a consideration of the facts and circumstances attendant to its preparation and either the manner of its deposit among the valuable papers of the author or its delivery to a third party for safekeeping. In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155 (1962); Rountree v. Rountree, 213 N.C. 252, 195 S.E. 784 (1938); In re Southerland, 188 N.C. 325, 124 S.E. 632 (1924); In re Bennett, 180 N.C. 5, 103 S.E. 917 (1920); Spencer v. Spencer, supra.

We are cited by propounder to In re Will of Ledford, 176 N.C. 610, 97 S.E. 482 (1918) and Rountree v. Rountree, supra, in support of his contention that a letter wholly in the handwriting of and signed by its author may be probated as a valid will. Suffice it to say that the language contained in the letters in each of the cited cases expressed the writer's testamentary intent more explicitly than the letter in the present case, but a more distinguishing feature is to be found in the cited cases in that in each case the letter was deposited by its author in a safe with other valuable papers and found there after his death.

In In re Will of Gilkey, supra at 420, 124 S.E.2d at 158, addressing himself to G.S. § 31-3.4(a)(3), as it relates to a holographic will being found among the valuable papers of the testator and the will being deposited with a third party for safekeeping, Justice Rodman wrote:

"The requirement that the writing be found after death among testatrix's valuable papers was to show the author's evaluation of the document, important because lodged with important documents, to become effective upon death because left there by the author, thereby establishing the necessary animus testandi. If the document had been placed among the author's valuable papers without her knowledge and consent, it would of course have no validity as a will even though found among the papers after the author's death."

Thus, if Dr. Mucci had addressed the letter to Mr. Johnson and had deposited it himself among his valuable papers and it had been found there after his death or if he had sent the letter to Mr. Johnson with instructions for its safekeeping, propounder's contention would be more tenable. In our opinion, the total absence of any evidence in the letter or otherwise that Dr. Mucci sent the letter to his attorney with *335 any directions or instructions for its safekeeping, coupled with evidence that he repeatedly refused to execute a former codicil prepared by Mr. Johnson after he wrote the letter in question, negates any suggestion that he intended that it operate as a codicil to his will. In re Bennett, supra. The letter and all of the evidence of the facts and circumstances attendant to its preparation and delivery to Mr. Johnson and its deposit by him in his office with the will points unerringly to the conclusion that Dr. Mucci did not intend that it operate as a codicil to his will; and a peremptory instruction to the jury on the issues raised by the caveat was necessary. In re Will of Simmons, 268 N.C. 278, 150 S.E.2d 439 (1966); In re Will of Roberts, 251 N.C. 708, 112 S.E.2d 505 (1960); In re Bennett, supra.

Propounder also contends the court erred in directing a verdict for the caveators. In In re Will of Redding, 216 N.C. 497, 498, 5 S.E.2d 544, 545 (1939), we find the following cogent statement:

"The proceedings to caveat a will are in rem without regard to particular persons, and must proceed to judgment, and motions as of nonsuit, or requests for direction of a verdict on the issues, will be disallowed. In re Will of Hinton, 180 N.C., 206 [104 S.E. 341]; In re Will of Westfeldt, 188 N.C., 702 [125 S.E. 531]."

See also Surety Co. v. Casualty Co., 11 N.C.App. 490, 181 S.E.2d 727 (1971) and In re Will of Hodgin, 10 N.C.App. 492, 179 S.E.2d 126 (1971). Thus, it was error for the court in the present case to direct a verdict for the caveators and the proceeding must be remanded to the superior court for a new trial in accordance with this opinion.

Reversed and remanded.

BRITT, Judge (concurring).

While I concur in Judge Hedrick's opinion that the trial court erred in directing a verdict for the caveators, and that the cause should be remanded for a jury to answer the issue of devisavit vel non with respect to the alleged codicil, I do not agree that caveators are entitled to a peremptory instruction on the issue.

Without restating all of the facts set out in the opinion, the evidence disclosed that Dr. Mucci, the testator, and Attorney Johnson were neighbors and close friends; that in June of 1971 Attorney Johnson prepared a will for Dr. Mucci who duly executed the will and left it with Attorney Johnson for safekeeping; that Attorney Johnson was named executor in the will; that on 25 September 1971, Dr. Mucci wrote in longhand and mailed to Attorney Johnson the letter alleged to be a codicil; and that Attorney Johnson filed the letter with the original will. I think the evidence was sufficient to raise an inference that Dr. Mucci intended for the letter to serve as a codicil to his will and to place it with Attorney Johnson for safekeeping.

It is true that there was evidence tending to show that Dr. Mucci did not intend that the letter should serve as a codicil to his will, but a resolution of the issue is for the jury rather than the court.

In their brief, caveators argue that under the new Rules of Civil Procedure a directed verdict is permissible in an appropriate caveat proceeding; that the rule in Redding, stated in Judge Hedrick's opinion, has been superseded by G.S. § 1A-1, Rule 50. Since a valid jury question is raised by the evidence in this case, I hold that we do not reach the question of whether Rule 50 supersedes the rule stated in Redding.

I vote to reverse the judgment appealed from, and to remand this cause to the superior court for jury trial of the issue of devisavit vel non upon appropriate instructions consistent with this opinion.

BALEY, J., concurs in Judge Britt's opinion.