In Re Will of Hodgin

179 S.E.2d 126 (1971)

10 N.C. App. 492

In the Matter of the WILL of Hazel V. HODGIN, Deceased.

No. 7119SC6.

Court of Appeals of North Carolina.

February 24, 1971.

*128 William A. Vaden, Herbin & Vaden, and Rufus K. Hayworth, Greensboro, for caveator appellee.

Robert E. Cooper and Michael D. Levine, Chapel Hill, and Coltrane & Gavin, by W. E. Gavin, Asheboro, for the North Carolina Chapter, The Arthritis Foundation, Inc., appellant.

Manning & Allen, by Marcus Hudson, Chapel Hill, for the North Carolina Heart Assn., appellant.

Jordan, Morris & Hoke, by Lucie S. Crumpler, Raleigh, for the American Cancer Society.

MORRIS, Judge.

At trial it was stipulated that all parties were properly before the court; that testatrix died 5 December 1968; that the paper writing was executed 15 August 1963 and *129 "that any pen markings or notations other than signatures" thereon were made subsequent to that date; that the paper writing "contained only the typewritten portions on the day of its execution and contained no pen marks or handwritten words other than the signatures of Hazel V. Hodgin, Norma F. Edwards and Ben Anderson"; that the witnesses to the signature of testatrix would so testify if present; that the paper writing was properly executed and witnessed in compliance with the provisions of G.S. § 31-3.3.

In addition to introducing into evidence the paper writing, propounders offered the evidence of James O. Vickrey with respect to the location of the paper writing when found, the fact that it was in an envelope sealed with masking tape, was in a locked cedar chest "along with some of her belongings, insurance papers, books, etc.", and had marked on the envelope to Jim and Charlie. Propounders offered no other evidence.

Caveator offered one witness, Bertha Toomes Teague, who testified in substance, except where quoted, as follows: that she and Hazel Hodgin were close friends and had been for many years; that Mrs. Hodgin discussed with her "a time or two" her will. "She did tell me she intended to have her will rewritten; that she had scribbled on it so much that she wasn't sure. She had scribbled on her will, and I took her to an attorney to have it rewritten, but she didn't let him do it. And she also called Larry Hammond from here up to my home and talked to him about rewriting her will, but she never got around to having it done as far as I know." "She said that she had included The Heart, Cancer and Arthritis Fund, but that she was going to cancel that." The witness said she did not recall any other statements Mrs. Hodgin made concerning any other dispositions in her will, but she was sure the reference to the Heart, Cancer and Arthritis Fund was in 1967. Witness said Mrs. Hodgin did a lot of letter writing, that sometimes she could hardly make out her letters, "and then again they were real plain." On cross-examination the witness said she had heard Mrs. Hodgin "mention about doing something in her will for the Centre Friends Church", that she had included a small amount to that Church in her will, but she never went into detail about how much she left anyone.

G.S. § 31-5.1 is applicable:

"A written will, or any part thereof, may be revoked only * * * (2) By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by the testator himself or by another person in his presence and by his direction." (Emphasis ours.)

In the record before us there is no evidence whatever as to who made the pen marks and wrote or printed the words and numerals appearing on the particular paper writing sought to be admitted to probate. Assuming that the marks were made by Mrs. Hodgin, there is no evidence of an intent thereby to revoke her will. Certainly there is no evidence of an intent different with respect to residents of California than residents of North Carolina.

This paper writing duly executed as a last will and testament was not revoked, in whole or in part, by defacing, cancellation, or obliteration, unless Mrs. Hodgin defaced or obliterated the paper writing, or some portion or portions thereof, with the intent thereby to revoke it, in whole or in part. Defacement or obliteration, even though shown to be made by testatrix, is not alone sufficient to show revocation. In re Will of Roediger, 209 N. C. 470, 184 S.E. 74 (1936).

Admittedly, this is an in rem action and the issue raised by caveat was for determination by the jury and the court may not grant a motion for directed verdict. In re Will of Roediger, supra; In re Westfeldt, 188 N.C. 702, 125 S.E. 531 (1924). The propounders and caveator are not parties to the proceeding to the extent *130 that they can by consent relieve the trial judge of his duty to submit the issue involved to the jury. Nevertheless, in this jurisdiction the Supreme Court has held that the trial judge does have authority to set aside the verdict in his discretion when the verdict is against the greater weight of the evidence. In re Will of Barfield, 242 N.C. 308, 87 S.E.2d 516 (1955).

In the case before us, the trial judge apparently acted under the mistaken belief that he had no authority to disturb the verdict of the jury. However, where as here the verdict was so obviously against the greater weight of the evidence the court exceeded his authority and discretion in failing to set aside the verdict. The proceeding is, therefore, remanded for a new trial on the issues raised by the caveat; the trial judge, of course, exercising his judgment as to whether a peremptory instruction is proper on any issues.

Error and remanded.

BROCK and VAUGHN, JJ., concur.