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  "name": "IN THE MATTER OF THE WILL OF: CORNELIUS WINSTON ALLEN, Deceased",
  "name_abbreviation": "In re the Will of Allen",
  "decision_date": "2002-02-05",
  "docket_number": "No. COA01-21",
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    "judges": [
      "Judges McGEE and TIMMONS-GOODSON concur."
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    "parties": [
      "IN THE MATTER OF THE WILL OF: CORNELIUS WINSTON ALLEN, Deceased"
    ],
    "opinions": [
      {
        "text": "BIGGS, Judge.\nMr. 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.\nThe will had been witnessed by two of Mr. Allen\u2019s 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 pro-pounders and one of the caveators. The will also included two phrases, which appeared to be written with a different pen: \u201cbank close\u201d and \u201cto and wife Valerie.\u201d 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 a jury trial was held on the issue of the validity of Mr. Allen\u2019s will. Caveators moved for a directed verdict at the close of the propounders\u2019s 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. \u201cA motion for directed verdict tests the sufficiency of the evidence to take the case to the jury.\u201d Lake Mary Ltd. Partnership v. Johnston, 145 N.C. App. 525, 531, 551 S.E.2d 546, 551, disc. review denied, 354 N.C. 363, - 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:\nOur 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 plaintiffs favor and giving plaintiff the benefit of every inference that can reasonably be drawn in plaintiffs 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.\nMeacham 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,\nthe non-movant is given the benefit of all helpful inferences reasonably drawn from the evidence, and all conflicts and contradictions in the evidence are decided in the non-movant\u2019s 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.\nIn 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:\nThe trial court is required to submit to the jury those issues \u2018raised by the pleadings and supported by the evidence.\u2019 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. \u2018Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019\nIn 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\u2019s ruling on a directed verdict motion is addressed to the court\u2019s discretion, and will not be overturned absent an abuse of discretion. Crist v. Crist, 145 N.C. App. 418, 550 S.E.2d 260 (2001).\nIn the instant case, the only issue raised by caveators\u2019 motion for directed verdict was the validity of Mr. Allen\u2019s 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\u2019s 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. \u00a7 31-3.4 (1999), which provides that:\n(a) A holographic will is a will\n(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\n(2) Subscribed by the testator, or with his name written in or on the will in his own handwriting, and\n(3) Found after the testator\u2019s 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.\nCaveators 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 \u201cwritten entirely in the handwriting of the testator,\u201d or, in the alternative, that if the words not in Mr. Allen\u2019s handwriting were disregarded, the remainder would constitute a valid holographic will. Caveators allege that the phrases \u201cbank close\u201d and \u201cto and wife Valerie\u201d were written by someone other than Mr. Allen, and that these words materially alter the meaning of the will, thus invalidating it.\nCaveators contend that \u201c[u]ncontradicted expert testimony established that Mr. Allen did not write the entire will[,]\u201d 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\u2019s handwriting. However, we are not persuaded by caveators\u2019 contention that the authorship of the phrases was conclusively shown by caveators\u2019 expert testimony. Several other witnesses testified to their understanding that Mr. Allen added the phrase about \u201cwife Valerie\u201d 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\u2019s 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\u2019s handwriting.\nGenerally, the issue of whether a holographic will is entirely in the testator\u2019s 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 \u201c5\u201d was written in handwriting of testator); In Re Will of Penley, 95 N.C. App. 655, 383 S.E.2d 385 (1989) (question for jury whether codicil to will was in testator\u2019s 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.\nCaveators 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:\nWhen 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.\nIn 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\u2019s intent, presence of other words does not invalidate will). If the challenged words are not essential to the will\u2019s 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\u2019s 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 \u201csignature\u201d was a monogram not in testator\u2019s handwriting); In Re Will of Smith, 218 N.C. 161, 10 S.E.2d 676 (1940) (will invalid where words not in testator\u2019s handwriting are essential to give other words meaning).\nRegarding \u201cbank close,\u201d this phrase has no apparent meaning, nor have caveators suggested any. We conclude that this phrase is sur-plusage, and may be disregarded completely. Regarding the phrase \u201cto and wife Valerie,\u201d caveators argue that this phrase effects a material alteration in the will\u2019s 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 the trial court \u201crewrote\u201d the phrase to read \u201cand to his wife, Valerie,\u201d rather than \u201cto and wife Valerie.\u201d It is true that \u201cin order to clarify the content of the will, \u2018the court [may] add, change, or disregard punctuation, phrases, and clauses.\u2019 \u201d 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. \u00a7 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.\nIn the present case, Mr. Allen\u2019s holographic will expressed a clear intention to bequeath his house to Edward Godfrey. The phrases which caveators contend may be in someone else\u2019s 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 \u201cand to [his] wife Valerie\u201d would be Valerie Godfrey, who has not contested the will.\nWe 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 \u201cbank close\u201d and \u201cto and wife Valerie\u201d are disregarded, the remainder is sufficient to express Mr. Allen\u2019s 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.\nCaveators 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. R 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.\nCaveators object to the following language from the trial court\u2019s instructions:\nFirst, 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\u2019s 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.\nCaveators argue that the trial court should have instructed the jury to determine specifically whether Mr. Allen wrote \u201cbank close\u201d and \u201cto and wife Valerie,\u201d and then to determine whether those words were essential to the meaning of the will.\nThe trial court\u2019s instruction was taken from the North Carolina Pattern Jury Instructions, N.C.P.I. Civil 860.10. \u201cThis Court has recognized that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions.\u201d 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.\nFinally, caveators argue that the will did not meet the requirement of G.S. \u00a7 31-3.4 that a testator\u2019s holographic will be found \u201camong his valuable papers or effects, or in a safe-deposit box or other safe place.\u201d\nThis 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\u2019s valuable papers or among testator\u2019s 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 dis-junctively; will found in purse hanging in closet found to be \u201cin safe place\u201d 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).\nThe 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:\nValuable 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 most valuable 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.\nIn Re Will of Wilson, 258 N.C. 310, 313, 128 S.E.2d 610, 603-04 (1962) (citation omitted).\nIn the present case, Mr. Allen\u2019s 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\u2019 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\u2019s \u201cvaluable papers,\u201d and accordingly, conclude that the caveators were not entitled to a directed verdict on this ground. This assignment of error is overruled.\nFor the reasons discussed above, we conclude that the trial court properly submitted the case to the jury, and affirm the court below.\nAffirmed.\nJudges McGEE and TIMMONS-GOODSON concur.",
        "type": "majority",
        "author": "BIGGS, Judge."
      }
    ],
    "attorneys": [
      "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."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE WILL OF: CORNELIUS WINSTON ALLEN, Deceased\nNo. COA01-21\n(Filed 5 February 2002)\n1. Wills\u2014 holographic \u2014 words of testator \u2014 directed verdict denied\nSufficient evidence was presented to submit to the jury the question of whether the testator wrote each word of a holographic will which included the phrases \u201cbank close\u201d and \u201cto and wife Valerie\u201d written with a different pen. Although an expert testified that the disputed phrases were not in the testator\u2019s handwriting, several other witnesses testified that the testator added one of the phrases, the testator died eight years after writing the main body of the will and had suffered a stroke in the meantime, and the expert had not examined any other exemplars of the testator\u2019s handwriting.\n2. Wills\u2014 holographic \u2014 surplus language\nA holographic will was sufficient to dispose of the testator\u2019s property where it included the phrases \u201cbank close\u201d and \u201cto and wife Valerie\u201d written with a different pen, but the remainder was sufficient to express the testator\u2019s intentions.\n3. Wills\u2014 holographic \u2014 instructions\nThe trial court did not err in a caveat proceeding by giving the jury an instruction from the Pattern Jury Instructions on holographic wills which was an accurate summary of the law.\n4. Wills\u2014 holographic \u2014 valuable papers\nA holographic will was found among the testator\u2019s valuable papers where the testator was a person of limited means and little formal education, and the will was found in a bowl in his kitchen with a bank document pertaining to funeral insurance, retirement fund documents, a social security check, papers from the Veterans\u2019 Administration Hospital, and other medical statements and bills.\nAppeal by caveators from judgment entered 3 October 2000 by Judge Jack A. Thompson in Lee County Superior Court. Heard in the Court of Appeals 17 October 2001.\nLove & Love, P.A. by Jimmy L. Love, Sr., for caveators-appellants.\nHarrington, Ward, Gilleland & Winstead, L.L.P., by Eddie S. Winstead, III, for propounders-appellees."
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