{ "id": 8522816, "name": "IN THE MATTER OF THE WILL OF CLYDE M. PENLEY, DECEASED", "name_abbreviation": "In re the Will of Penley", "decision_date": "1989-09-19", "docket_number": "No. 8928SC31", "first_page": "655", "last_page": "657", "citations": [ { "type": "official", "cite": "95 N.C. App. 655" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 31-18.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "1 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629275 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0259-01" ] }, { "cite": "349 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732777, 4738513, 4738804, 4734109, 4737790 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0417-02", "/nc/318/0417-01", "/nc/318/0417-03", "/nc/318/0417-04", "/nc/318/0417-05" ] }, { "cite": "346 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "82 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358878 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/82/0318-01" ] }, { "cite": "337 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714555 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0386-01" ] }, { "cite": "332 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 246", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526982 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0246-01" ] }, { "cite": "212 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569382, 8569418, 8569527, 8569467, 8569499 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0545-01", "/nc/286/0545-02", "/nc/286/0545-05", "/nc/286/0545-03", "/nc/286/0545-04" ] }, { "cite": "210 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "24 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551810 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/24/0435-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 31-3.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1984, "opinion_index": 0 } ], "analysis": { "cardinality": 396, "char_count": 6589, "ocr_confidence": 0.759, "pagerank": { "raw": 2.2301949311262715e-07, "percentile": 0.7789125929735672 }, "sha256": "cd8d8e11188cc37b80fe5a381e37324dd62f12a25f3803ffa6d91e1a04bde795", "simhash": "1:0a2054f3c1790689", "word_count": 1056 }, "last_updated": "2023-07-14T18:25:49.576177+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Parker concur." ], "parties": [ "IN THE MATTER OF THE WILL OF CLYDE M. PENLEY, DECEASED" ], "opinions": [ { "text": "WELLS, Judge.\nPropounders\u2019 principal assignment of error goes to the trial court\u2019s denial of their motion for directed verdict. They argue that caveators did not offer a sufficient writing under the statute to be subject to probate. We disagree. A holographic will is one that (1) is entirely in the testator\u2019s own handwriting, (2) bears the testator\u2019s name in his own handwriting, and (3) was found among the testator\u2019s valuables. N.C. Gen. Stat. \u00a7 31-3.4 (1984). Such a writing may be offered for probate only upon the testimony of at least one witness that it was found among the testator\u2019s valuables, and of at least three witnesses that they each believe it to be entirely in the testator\u2019s own handwriting. Id. at \u00a7 31-18.2. A witness is competent to testify regarding the authenticity of a testator\u2019s handwriting where it is shown that such witness is familiar with both the testator\u2019s handwriting and signature. In re Will of Loftin, 24 N.C. App. 435, 210 S.E.2d 897, cert. denied, 286 N.C. 545, 212 S.E.2d 169 (1975). In reviewing the denial of a motion for directed verdict under Rule 50 of the North Carolina Rules of Civil Procedure, the standard to be applied is whether the evidence, taken in the light most favorable to the nonmovant and giving the non-movant the benefit of every reasonable inference arising therefrom, is sufficient to go to the jury. Alston v. Herrick, 76 N.C. App. 246, 332 S.E.2d 720 (1985), affirmed, 315 N.C. 386, 337 S.E.2d 851 (1986). The court should deny a motion for directed verdict if there is more than a scintilla of evidence to support the nonmovant\u2019s prima facie case. Rice v. Wood, 82 N.C. App. 318, 346 S.E.2d 205, cert. denied, 318 N.C. 417, 349 S.E.2d 599 (1986).\nApplying these principles to the case at bar, we find no error. Caveators presented testimony that the holographic writings were found among papers which included the titles to testator\u2019s car and house trailer, copies of property deeds, health insurance papers, and cancelled bank notes. Caveators further presented testimony that testator duly executed his signature on the writings before a notary public. Finally, caveators presented the testimony of three witnesses who all testified that they were familiar with both the handwriting and signature of the testator and that they believed the subject writings and signatures to be in testator\u2019s own hand. It is true that the familiarity of one witness with testator\u2019s handwriting was based on knowledge acquired some forty years earlier during high school. This, however, does not go to admissibility but to credibility. In re Williams\u2019 Will, 215 N.C. 259, 1 S.E.2d 857 (1939). Moreover, when coupled with the testimony of the other two witnesses, one of whom was the testator\u2019s former wife, the evidence that the writings were in testator\u2019s own hand, taken in the light most favorable to caveators, was sufficient to take the case to the jury.\nBecause caveators presented sufficient indicia of a holographic will under N.C. Gen. Stat. \u00a7 31-3.4 and because they satisfied the requirements of N.C. Gen. Stat. \u00a7 31-18.2, propounders\u2019 motion for directed verdict was properly denied. Propounders\u2019 remaining assignments of error have been carefully considered, are found to be without merit, and are overruled.\nWe have also carefully reviewed the trial court\u2019s order for counsel fees and the materials submitted in support of caveators\u2019 petition for counsel fees, and we affirm that order.\nIn the trial, we find\nNo error.\nThe order for counsel fees is\nAffirmed.\nJudges Phillips and Parker concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Ronald W. Howell, P.A., by Ronald W. Howell, for propounder-appellants.", "Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Larry S. McDevitt and Michelle Rippon, for caveator-appellees." ], "corrections": "", "head_matter": "IN THE MATTER OF THE WILL OF CLYDE M. PENLEY, DECEASED\nNo. 8928SC31\n(Filed 19 September 1989)\nWills \u00a7 10\u2014 holographic codicil \u2014 sufficiency for probate\nCaveators offered a sufficient writing for probate as a holographic codicil where they introduced two identical photocopies of a holographic testamentary disposition; presented testimony that the testator duly executed his signature on each photocopy before a notary public; offered evidence that the holographic writings were found among the testator\u2019s valuable papers; and presented the testimony of three witnesses that they were familiar with testator\u2019s handwriting and signature and believed the subject writings and signatures to be in testator\u2019s own hand. N.C.G.S. \u00a7\u00a7 31-3.4, 31-18.2.\nAPPEAL by propounders from Sherrill, W. Terry, Judge. Judgment entered 3 October 1988 in BUNCOMBE County Superior Court. Heard in the Court of Appeals 29 August 1989.\nThe testator, Clyde M. Penley, died 27 July 1987. His attested written will of 9 March 1983 was probated in common form on 3 August 1987. Letters testamentary were issued to testator\u2019s brother, James Penley, as provided by the will. A caveat, alleging a holographic codicil to the attested will, was filed 4 August 1988 by Joseph Penley, son of the testator. Citations were issued and served on the beneficiaries under the respective writings, and the parties were aligned by the superior court on 11 September 1988. Propounders were designated as James Penley and Carroll Penley. Caveators were designated as Joseph Penley, Betty Penley, and the Weaverville Baptist Church. The case was tried before a jury on 19-21 September 1988.\nThe record discloses that caveators were permitted to introduce into evidence two photocopies of a holographic testamentary disposition dated 26 January 1984. These writings were identical in every respect. The testator\u2019s original signature appeared on each photocopy. These signatures were duly acknowledged by testator before a notary public. Caveators also introduced testimony as to authenticity of the handwriting and signatures, as well as on the location where the writings were found after testator\u2019s death.\nAt the close of evidence, propounders moved for directed verdict pursuant to Rule 50 of the North Carolina Rules of Civil Procedure on the grounds that caveators had failed to offer a writing subject to probate. This motion was denied. All issues were answered in favor of caveators and judgment declaring that the attested written will was modified by a duly executed holographic codicil was entered 3 October 1988.\nSubsequent to the entry of judgment for caveators, the trial court entered an order awarding counsel fees to counsel for caveators, as cost in the action, in the sum of $36,601.50.\nFrom both the judgment and the order for counsel fees, pro-pounders have appealed.\nRonald W. Howell, P.A., by Ronald W. Howell, for propounder-appellants.\nVan Winkle, Buck, Wall, Starnes & Davis, P.A., by Larry S. McDevitt and Michelle Rippon, for caveator-appellees." }, "file_name": "0655-01", "first_page_order": 683, "last_page_order": 685 }