IN THE MATTER OF THE WILL OF: CORNELIUS WINSTON ALLEN, Deceased.
Love & Love, P.A. by Jimmy L. Love, Sr., for caveators-
appellants.
Harrington, Ward, Gilleland & Winstead, L.L.P., by Eddie S.
Winstead, III, for propounders-appellees.
BIGGS, Judge.
Mr. Cornelius Allen (Mr. Allen), an elderly widower from Lee
County, died on 2 December 1998. He had no living wife or
children, and was succeeded by a brother, two sisters, and a nephew
(caveators). Upon his death, a handwritten will was found among
other papers in a wooden bowl on his kitchen counter.
The will had been witnessed by two of Mr. Allen's friends on
2 January 1991. It bequeathed to one caveator a car, to another
his household possessions; left his house to one of the
propounders; and divided the contents of a safety deposit box
between one of the propounders and one of the caveators. The will
also included two phrases, which appeared to be written with a
different pen: “bank close” and “to and wife Valerie.”
Propounders submitted the will for probate on 3 December 1998.
Caveators filed a caveat on 23 August 1999, alleging that the will
was not a validly executed holographic will. On 2 October 2000 ajury trial was held on the issue of the validity of Mr. Allen's
will. Caveators moved for a directed verdict at the close of the
propounders's evidence, and again at the close of all the evidence;
their motions were denied. The jury returned a verdict in favor of
propounders, finding the will was a valid holographic will.
Caveators appeal from the denial of their motions for directed
verdict, and from the verdict. Caveators argue that the trial
court erred in its denial of their motion for a directed verdict.
“A motion for directed verdict tests the sufficiency of the
evidence to take the case to the jury.” Lake Mary Ltd. Partnership
v. Johnston, __ N.C. App. __, __, 551 S.E.2d 546, 551, disc. review
denied, __ N.C. __, __ S.E.2d __ (2001) (quoting Abels v. Renfro
Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993)). In
ruling on a motion for directed verdict, the trial court applies
the following standard:
Our courts have consistently held that on
motion by a defendant for a directed verdict
in a jury trial, the court must consider all
of the evidence in the light most favorable to
the plaintiff, resolving all conflicts in
plaintiff's favor and giving plaintiff the
benefit of every inference that can reasonably
be drawn in plaintiff's favor; that the court
may then grant the motion only if, as a matter
of law, the evidence is insufficient to
justify a verdict for the plaintiff.
Meacham v. Board of Education, 59 N.C. App. 381, 383, 297 S.E.2d
192, 194 (1982), disc. review denied, 307 N.C. 577, 299 S.E.2d 651
(1983) (citations omitted). Thus,
the non-movant is given the benefit of all
helpful inferences reasonably drawn from theevidence, and all conflicts and contradictions
in the evidence are decided in the
non-movant's favor. Evidence of the
non-movant which raises a mere possibility or
conjecture cannot defeat a motion for directed
verdict. . . . If, however, non-movant shows
more than a scintilla of evidence, the court
must deny the motion.
In re Will of Sechrest, 140 N.C. App. 464, 468, 537 S.E.2d 511, 515
(2000) (quoting McFetters v. McFetters, 98 N.C. App. 187, 191, 390
S.E.2d 348, 350, disc. review denied, 327 N.C. 140, 394 S.E.2d 177
(1990)), disc. review denied, 353 N.C. 375, 547 S.E.2d 16 (2001)
(citations omitted). Further:
The trial court is required to submit to the
jury those issues 'raised by the pleadings and
supported by the evidence.' An issue is
supported by the evidence when there is
substantial evidence, considered in the light
most favorable to the non-movant, in support
of that issue. 'Substantial evidence is such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'
In re Estate of Ferguson, 135 N.C. App. 102, 105, 518 S.E.2d 796,
798 (1999) (quoting Johnson v. Massengill, 280 N.C. 376, 384, 186
S.E.2d 168, 174 (1992)) and (quoting State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980)) (citation omitted). The trial
court's ruling on a directed verdict motion is addressed to the
court's discretion, and will not be overturned absent an abuse of
discretion. Crist v. Crist, __ N.C. App. __, 550 S.E.2d 260
(2001).
In the instant case, the only issue raised by caveators'
motion for directed verdict was the validity of Mr. Allen's will. The motion should be denied if the trial evidence, considered in
the light most favorable to propounders, was sufficient to allow a
reasonable mind to find that the validity of Mr. Allen's
holographic will had been established by the preponderance of the
evidence. We therefore review the law governing holographic wills.
The three requirements for a valid holographic will are set forth
in N.C.G.S. § 31-3.4 (1999), which provides that:
(a) A holographic will is a will
(1) Written entirely in the handwriting
of the testator but when all the
words appearing on a paper in the
handwriting of the testator are
sufficient to constitute a valid
holographic will, the fact that
other words or printed matter appear
thereon not in the handwriting of
the testator, and not affecting the
meaning of the words in such
handwriting, shall not affect the
validity of the will, and
(2) Subscribed by the testator, or with
his name written in or on the will
in his own handwriting, and
(3) Found after the testator's death
among his valuable papers or
effects, or in a safe-deposit box or
other safe place where it was
deposited by him or under his
authority, or in the possession or
custody of some person with whom, or
some firm or corporation with which,
it was deposited by him or under his
authority for safekeeping.
Caveators first argue that their directed verdict motion
should have been granted because the evidence presented at trial
was insufficient to meet the statutory requirement that the will be
either “written entirely in the handwriting of the testator,” or,
in the alternative, that if the words not in Mr. Allen'shandwriting were disregarded, the remainder would constitute a
valid holographic will. Caveators allege that the phrases “bank
close” and “to and wife Valerie” were written by someone other than
Mr. Allen, and that these words materially alter the meaning of the
will, thus invalidating it.
Caveators contend that “[u]ncontradicted expert testimony
established that Mr. Allen did not write the entire will[,]”
entitling them to directed verdict on this issue. At trial, a
handwriting expert testified that the disputed phrases did not
appear to be in Mr. Allen's handwriting. However, we are not
persuaded by caveators' contention that the authorship of the
phrases was conclusively shown by caveators' expert testimony.
Several other witnesses testified to their understanding that Mr.
Allen added the phrase about “wife Valerie” after the will was
initially executed. Moreover, it was not disputed that Mr. Allen
died some eight years after writing the main body of the will, and
had suffered a stroke before his death. Under these circumstances,
Mr. Allen's handwriting may have changed between the original
execution of the will and any later additions. We note that the
handwriting expert had not examined any other exemplars of Mr.
Allen's handwriting.
Generally, the issue of whether a holographic will is entirely
in the testator's handwriting is a question for the jury. In Re
Will of Wall, 216 N.C. 805, 5 S.E.2d 837 (1939) (jury question
whether number “5” was written in handwriting of testator); In ReWill of Penley, 95 N.C. App. 655, 383 S.E.2d 385 (1989) (question
for jury whether codicil to will was in testator's handwriting),
disc. review denied, 326 N.C. 48, 389 S.E.2d 93 (1990). The issue
remains a jury question notwithstanding evidence to the contrary.
In Re Will of Gatling, 234 N.C. 561, 68 S.E.2d 301 (1951)
(caveators offer expert testimony that testator did not write
certain words and phrases; jury permitted to decide matter). We
conclude that sufficient evidence was presented to submit to the
jury the question of whether Mr. Allen wrote each word of the will,
and that caveators were not entitled to a directed verdict on this
basis.
Caveators argue next that if the evidence raises a doubt
regarding the authorship of certain words, then the will must have
the same meaning with or without the challenged words. We
disagree. The North Carolina Supreme Court has held that:
When all the words appearing on a paper in the
handwriting of the deceased person are
sufficient, as in the instant case, to
constitute a last will and testament, the mere
fact that other words appear thereon, not in
such handwriting, but not essential to the
meaning of the words in such handwriting,
cannot be held to defeat the intention of the
deceased, otherwise clearly expressed, that
such paper writing is and shall be his last
will and testament.
In Re Will of Parson, 207 N.C. 584, 587, 178 S.E. 78, 80 (1935),
(quoting In Re Will of Lowrance, 199 N.C. 782, 785, 155 S. E. 876,
878 (1930)). Thus, in North Carolina, if the words written by the
testator are sufficient to constitute a valid holographic will,then the will is not invalidated by the presence of other words
that are not in his handwriting. Pounds v. Litaker, 235 N.C. 746,
71 S.E.2d 39 (1952) (presence of surplusage not in handwriting of
the deceased does not defeat intention of deceased to execute
will); In Re Will of Wallace, 227 N.C. 459, 42 S.E.2d 520 (1947)
(if handwritten words sufficiently express testator's intent,
presence of other words does not invalidate will). If the
challenged words are not essential to the will's meaning, they are
deemed surplusage. In Re Will of Lowrance, 199 N.C. 782, 155
S.E.2d 876 (printed words on letterhead are surplusage). However,
the will is invalid if the words that are not in the testator's
handwriting are necessary in order to establish a valid holographic
will. Pounds, 235 N.C. 746, 71 S.E.2d 39 (will cannot be probated
where its only “signature” was a monogram not in testator's
handwriting); In Re Will of Smith, 218 N.C. 161, 10 S.E.2d 676
(1940) (will invalid where words not in testator's handwriting are
essential to give other words meaning).
Regarding “bank close,” this phrase has no apparent meaning,
nor have caveators suggested any. We conclude that this phrase is
surplusage, and may be disregarded completely. Regarding the
phrase “to and wife Valerie,” caveators argue that this phrase
effects a material alteration in the will's meaning, by
transforming the bequest to Edward Godfrey into a devise to both
Edward and Valerie Godfrey as tenants by the entirety. This
contention necessarily is premised upon the assumption that thetrial court “rewrote” the phrase to read “and to his wife,
Valerie,” rather than “to and wife Valerie.” It is true that “in
order to clarify the content of the will, 'the court [may] add,
change, or disregard punctuation, phrases, and clauses.'” Johnson
v. Johnson, 46 N.C. App. 316, 319, 264 S.E.2d 911, 913 (1980)
(quoting 1 N. Wiggins, Willis and Administration of Estates in N.C.
§ 133 at 415 (1964)), disc. review denied, 300 N.C. 557, 270 S.E.2d
108 (1980); see also McRorie v. Creswell, 273 N.C. 615, 160 S.E.2d
681 (1968) (court may disregard grammatical or punctuation errors
if necessary to proper construction of will). However, in the case
sub judice, there is no evidence that the trial court transposed
and added words. Nor was the jury instructed to base their
deliberations upon the assumption that the phrase had been
rewritten.
In the present case, Mr. Allen's holographic will expressed a
clear intention to bequeath his house to Edward Godfrey. The
phrases which caveators contend may be in someone else's writing
does not revoke or alter that intent. Moreover we find it
significant that the only person whose inheritance would be
affected by the deletion of the words “and to [his] wife Valerie”
would be Valerie Godfrey, who has not contested the will.
We conclude that sufficient evidence was presented to submit
to the jury the question of the authorship of all parts of the
will; and further that if the phrases “bank close” and “to and wife
Valerie” are disregarded, the remainder is sufficient to expressMr. Allen's intentions, and to dispose of his property. We further
conclude that caveators were not entitled to a directed verdict on
the ground that these phrases might have been written by someone
other than Mr. Allen. Accordingly, this assignment of error is
overruled.
Caveators argue next that the trial court erred in its
instructions to the jury. Caveators have not included the jury
charge in the record, as required by N.C.R. App. P. 9(f). However,
in our discretion, and pursuant to our authority under N.C.R. App.
P. 2, we elect to review this issue on its merits.
Caveators object to the following language from the trial
court's instructions:
First, every word of the writing sufficient to
constitute a will must be entirely in the
handwriting of the deceased. The fact that
there are other words which are not in the
deceased's handwriting will not render the
writing invalid as a will so long as the words
which are in his handwriting are sufficient to
express his intent to make a will and to
dispose of his property. Such other words are
surplus.
Caveators argue that the trial court should have instructed
the jury to determine specifically whether Mr. Allen wrote “bank
close” and “to and wife Valerie,” and then to determine whether
those words were essential to the meaning of the will.
The trial court's instruction was taken from the North
Carolina Pattern Jury Instructions, N.C.P.I. Civil 860.10. “This
Court has recognized that the preferred method of jury instruction
is the use of the approved guidelines of the North Carolina PatternJury Instructions.” Caudill v. Smith, 117 N.C. App. 64, 70, 450
S.E.2d 8, 13 (1994), disc. review denied, 339 N.C. 610, 454 S.E.2d
247 (1995). Moreover, this pattern jury instruction is an accurate
summary of the law. We overrule this assignment of error.
Finally, caveators argue that the will did not meet the
requirement of G.S. § 31-3.4 that a testator's holographic will be
found “among his valuable papers or effects, or in a safe-deposit
box or other safe place.”
This Court has held that the statute should be read in the
disjunctive, and, thus, that a will is valid if found either in a
safe deposit box, or among testator's valuable papers or among
testator's valuable effects, or in a safe place. In Re Will of
Church, 121 N.C. App. 506, 466 S.E.2d 297 (1996) (holding that
statutory list should be read disjunctively; will found in purse
hanging in closet found to be “in safe place” in meaning of
statute); Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826
(1987) (will found in jewelry box in bedroom).
The determination of whether a will is found among valuable
papers must be evaluated in the context of what would likely be
regarded by the decedent as valuable. In re Westfeldt, 188 N.C.
702, 125 S.E. 531 (1924). In another case, the Supreme Court of
North Carolina held that:
Valuable papers within the meaning of the
statute are such papers as are kept and
considered worthy of being taken care of by
the particular person, having regard to his
condition, business, and habits of preserving
papers. They do not necessarily mean the mostvaluable papers of the decedent even, and are
not confined to papers having a money value,
or to deeds for land, obligations for the
payment of money, or certificates of stock. .
. consequently, the sufficiency of the place
of deposit to meet the requirement of the
statute will depend largely upon the condition
and arrangements of the testator.
In Re Will of Wilson, 258 N.C. 310, 313, 128 S.E.2d 610, 603-04
(1962) (citation omitted).
In the present case, Mr. Allen's will was found in a bowl in
his kitchen. Found in the same bowl were a bank document
pertaining to funeral insurance, retirement fund documents, a
social security check, papers from the Veterans' Administration
Hospital, and other medical statements and bills. The evidence
suggested that Mr. Allen was a person of limited means and little
formal education. We conclude that in consideration of his
apparent style of life, and the nature of the other papers in the
bowl, the jury could properly find that the will was found among
Mr. Allen's “valuable papers,” and accordingly, conclude that the
caveators were not entitled to a directed verdict on this ground.
This assignment of error is overruled.
For the reasons discussed above, we conclude that the trial
court properly submitted the case to the jury, and affirm the court
below.
Affirmed.
Judges MCGEE and TIMMONS-GOODSON concur.
*** Converted from WordPerfect ***