In Re Will of Farr

175 S.E.2d 578 (1970)

In re WILL of William FARR.

No. 51.

Supreme Court of North Carolina.

July 31, 1970.

*581 Bennett, Kelly & Long and Hendon & Carson, Asheville, for caveator-appellee.

Landon Roberts, Van Winkle, Buck, Wall, Starnes & Hyde, and Williams, Morris & Golding, Asheville, for propounder-appellants.

SHARP, Justice.

The question presented is whether the application of G.S. § 31-5.8 to instruments constituting the will of Farr, and its effect upon the distribution of his estate, were relevant to the issue of his mental capacity at the time he executed the fifth codicil. The Court of Appeals held that G.S. § 31-5.8 was "not relevant to the theory of the trial" and that Judge Snepp was correct when he instructed the jurors that they were not concerned with the legal effect of their verdict and refused to instruct that the sixth codicil did not revive Articles Four and Thirteen of the original will. Yet, at the same time, the Court of Appeals held that the trial judge committed error entitling caveator to a new trial when he prevented her counsel from arguing G.S. § 31-5.8 to the jury. As counsel for propounders and caveator all agree, these two rulings are fundamentally inconsistent. Either the legal effect of the statute was a matter for the jury's consideration under proper instructions from the court or caveator's attorney was not entitled to argue its effect to the jury.

The consequence of Farr's fifth codicil, executed 22 February 1966, was to revoke Articles Four and Thirteen of the original will and to substitute different provisions for them. The effect of the sixth codicil was to revoke the fifth. However, Articles Four and Thirteen of the will were not reinstated by the revocation of codicil No. 5 which had nullified them. Under G.S. § 31-5.8, Farr could have revived Articles Four and Thirteen only by a reexecution of the will or by incorporating the previously revoked articles by reference or restatement in the sixth codicil. 1 Wiggins, Wills and Administration of Estates in North Carolina § 94 (1964); 31 N.C.L.Rev. 448 (1953). "Under *582 statutes making reëxecution essential to revival, the mere revocation of a subsequent will does not revive a prior will, even though the testator so intended * * *." 95 C.J.S. Wills § 301 (3) (1957). Accord, Osburn v. Rochester Trust and Safe Deposit Company, 209 N.Y. 54, 102 N.E. 571; In re Levin's Will, 26 Misc.2d 866, 208 N.Y.S.2d 731; In Re Moffat's Estate, 5 Misc.2d 991, 158 N.Y.S.2d 975. See Estate of Eberhardt, 1 Wis.2d 439, 85 N.W.2d 483; Poindexter v. Jones, 200 Va. 372, 106 S.E.2d 144; Annot., 162 A.L.R. 1076, 28 A.L.R. 921.

The result of codicils five and six is that Farr's widow takes nothing under his will and he died intestate as to his residuary estate, of which she is entitled to receive one-third. G.S. § 29-14(2). Had the jury invalidated codicil No. 5 upon either of the grounds alleged caveator would have taken under Articles Four and Thirteen of the will. She contends that G.S. § 84-14 authorized her counsel to argue to the jury "the whole case as well of law as of fact," and that the jurors should have been informed of the consequences of their verdict to her if it validated the fifth codicil. Specifically, she asserts that her counsel should have been allowed to argue (1) that Farr's will and codicils show that he did not intend to die intestate as to any of his property and that he had intended to make a specific provision for her; and (2) that his "lack of capacity to do what he obviously intended to do on March 16, 1966" was relevant upon the question of his mental capacity on 22 February 1966, the day he executed the fifth codicil. These contentions cannot be sustained.

It would be an astonishing assertionfraught with danger to members of the legal profession as well as the laity were we to hold that mere ignorance of a technical statute relating to wills evidenced a lack of testamentary capacity. We do not so hold.

There is in the transcript no evidence tending to establish Farr's knowledge or lack of knowledge of the existence or effect of G.S. § 31-5.8 at the time he executed his last two codicils. However, he was not a lawyer and, from the circumstances attendant, it is reasonable to infer that when he executed the sixth codicil he intended to reinstate original Articles Four and Thirteen of his will, and that he thought he had done so. The will and all previous codicils to it had been prepared by Farr's attorney; the sixth he dictated himself. A layman, ignorant of G.S. § 31-5.8, might be expected to assume that if he revoked codicil No. 5 (which had canceled two specific provisions of his will) the revocation would revive those previously revoked provisions. See Marsh v. Marsh, 48 N.C. 77; Wiggins, supra, § 94 at p. 260. Farr's failure to accomplish this purpose by the means he employed (the sixth codicil) indicates not a lack of mental capacity but ignorance of the law and a mistaken belief as to the legal consequences of his act. However, in the absence of fraud, a testator's misunderstanding of the legal effect of a will or codicil will not ordinarily affect its validity. In re Will of Cobb, 271 N.C. 307, 156 S.E.2d 285. "To recognize the testator's misunderstanding of the legal provisions of his will as a sufficient basis for contest would be to subject a majority of wills to the possibility of attack by disgruntled and disappointed heirs." 1 Wiggins, supra, § 67. Accord, 1 Bowe-Parker: Page on Wills § 13.6 (1960).

The words which Farr used in his last two codicils are clear, concise, and create no ambiguity. They leave "no doubt as to what he meant, looking to the plain legal import of the terms he employed to express his purpose in the will. * * *

"Evidence cannot be heard to explain, add to, take from, modify, or contradict a will when its terms plainly indicate the testator's purpose as to persons or things mentioned in it. * * * Any other rule would place it practically within the power of interested persons to make a testator's will, so as to meet the convenience and wishes of those who might *583 claim to take under it." McDaniel v. King, 90 N.C. 597, 602.

Whether the instruments propoundedparticularly codicil No. 5constituted the will of Farr depended upon the jury's answers to the specific questions posed by the issues. The jury could not properly base its findings upon the legal consequences of its verdict, for the legal consequences of the verdict could not be known prior to the jury's determination of the true facts. We have held that the jury in a criminal case is not entitled to know the possible punishment for the various crimes included in the bill of indictment upon which a defendant is being tried. State v. Rhodes, 275 N.C. 584, 169 S.E.2d 846. The quantum of punishment which a guilty verdict will authorize the judge to impose is totally irrelevant to the issue of a defendant's guilt, and the minds of the jurors should not be diverted from the question of guilt or influenced by speculation as to the amount of punishment a defendant could or should receive. Similarly, in a caveat to a will, the jurors should not be deflected from their function of ascertaining the facts from the evidence by speculations as to whether the decedent's estate would be distributed more equitably under the instrument propounded or according to the laws of intestate succession.

G.S. § 84-14, which provides that "[i]n jury trials the whole case as well of law as of fact may be argued to the jury," does not authorize counsel to argue law which is not applicable to the issues, for such arguments "could only lead to confusion in the minds of the jury." State v. Crisp, 244 N.C. 407, 412, 94 S.E.2d 402, 406. When the remarks of counsel are not warranted by either the evidence or the law, or are calculated to mislead or prejudice the jury, it is the duty of the judge to interfere. Jenkins v. Harvey C. Hines Co., 264 N.C. 83, 141 S.E.2d 1; State v. Howley, 220 N.C. 113, 16 S.E.2d 705.

We hold that Judge Snepp ruled correctly, both when he declined to instruct the jury as to the provisions of G.S. § 31-5.8 and when he refused to permit counsel for caveator to argue the statute to the jury. The decision of the Court of Appeals that caveator is entitled to a new trial is

Reversed.