{ "id": 11254029, "name": "In re Will of PARIS EDWARDS", "name_abbreviation": "In re Will of Edwards", "decision_date": "1916-11-01", "docket_number": "", "first_page": "369", "last_page": "372", "citations": [ { "type": "official", "cite": "172 N.C. 369" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "49 N. C., 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681142 ], "opinion_index": 0, "case_paths": [ "/nc/49/0034-01" ] }, { "cite": "160 N. C., 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272269 ], "opinion_index": 0, "case_paths": [ "/nc/160/0555-01" ] }, { "cite": "41 L. R. A., 39", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "66 N. C., 54", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "4 N. C., 397", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "138 N. C., 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269717 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/138/0473-01" ] }, { "cite": "171 N. C., 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269076 ], "opinion_index": 0, "case_paths": [ "/nc/171/0074-01" ] }, { "cite": "22 N. C., 457", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "161 N. C., 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270153 ], "opinion_index": 0, "case_paths": [ "/nc/161/0217-01" ] }, { "cite": "148 N. C., 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270256 ], "opinion_index": 0, "case_paths": [ "/nc/148/0417-01" ] } ], "analysis": { "cardinality": 496, "char_count": 8810, "ocr_confidence": 0.423, "pagerank": { "raw": 1.0353563973154653e-07, "percentile": 0.5492721776443337 }, "sha256": "ea6c87b718236b9823c13d24590dca75474d9265bca7bda61c2c58f588a17f96", "simhash": "1:948b2c39fa18765e", "word_count": 1583 }, "last_updated": "2023-07-14T19:21:58.562423+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Will of PARIS EDWARDS." ], "opinions": [ { "text": "Clark:, C. J.\nThe following paper-writing was offered for probate as the will of Paris Edwards:-\n18 November, 1912.\nI, Paris H. Edwards, of the State of North Carolina, Guilford County, being of sound mind and memory, do make, publish, and declare this to be my last will and testament, to wit:\n1. I, Paris PI. Edwards, of the first part, do agree to give Will Kirk-man all I possess, to have and to hold and diminish as he may see fit.\n2. I, Willie Kirkman, of the second part, do agree to take Paris Edwards and care for him as long as he lives.\nI, Paris Edwards, of tbe first part, do declare tbis to be my last will and testament, hereby revoking all former wills by me made and written.\nWherefore, I have hereunto set my hand and seal, this 18 November, 1912. His\nPARIS X Edwards.\nWitness: \u2022 mark\nE. S. JONES.\nJ. F. Hassell.\nThe court instructed the jury that this was not a will. The verdict and judgment were rendered accordingly. The caveator moved to dismiss the appeal for failure to assign error; but exception was taken at the time, and the appeal being from the judgment, is of itself a sufficient assignment of error. Ullery v. Guthrie, 148 N. C., 417; Queen v. R. R., 161 N. C., 217.\nA will has been defined as \u201ca disposition of property to take effect on or after the death of the owner.\u201d 40 Cyc., 995. In Payne v. Sale, 22 N. C., 457, it is defined as \u201cthe just sentence of our will touching what we would have done after our death.\u201d\nThe testator certainly understood that he was making a will, for in the first paragraph of this paper-writing he recites: \u201cbeing of sound mind and memory, I do make, publish, and declare this to be my last will and testament, to wit\u201d:\nAnd in the last paragraph he again recites: \u201cI do declare this to be my last will and testament, hereby revoking all former wills by me made and written.\u201d The same is duly witnessed by the signature of two witnesses thereto, as required by law for- a will. In the body of the writing, between the paragraphs above quoted, he provides: \u201c1. I, Paris H. Edwards, of the first part, do agree to give Will Kirkman all I possess, to' have and to hold and diminish as he may see fit.\n\u201c2. I, Willie Kirkman, of the second part, do agree to take Paris H, Edwards and care for him as long as he lives.\u201d\nThe above constitutes the whole of the instrument except the. attesting clause.\nThe intention to dispose of all his property in favor of Willie Kirk-man, and that this is to be Paris Edwards\u2019 last will and testament, is thus most explicitly stated. The paragraph containing the statement that Willie Kirkman is to care for him \u201cas long as he (Edwards) lives\u201d is an indication that Kirkman is to have his property after the testator\u2019s death, and his getting it then is conditioned upon Kirkman carrying out that understanding. While it is inartificially drawn, the evident intent is to express this motive for executing the will. This agreement is not signed by Kirkman and there is no contract by Kirkman.\nThis is the not unusual case of a testator giving a reason for willing his entire property to a stranger. If Kirkman had not rendered these services, a question might- have been raised as to -the validity of the will; but we need not pass upon that. By the testator\u2019s own declaration, twice made in this paper-writing, this was \u201chis last will and testament.\u201d The recital that Willie Kirkman had agreed, in consideration of his making the will in his favor, to take care of the testator for the remainder of his life, is mere surplusage.\nWe have a very recent case, exactly in point, In re Cole\u2019s Will, 171 N. C., 74, where a holograph will of the husband, signed by him and his wife, purporting to be their joint will, disposing of all of the property of both, was held to be valid as the holograph will of the husband, and the joinder therein by the wife and her signature thereto was held mere surplusage.\n\u201cNo particular form of expression is necessary to constitute a legal disposition of property by will. Although apt words are not used, and the language is inartificial, the Court will give effect to it where the intent is apparent,\u201d says Brown, J., in Kerr v. Girdwood, 138 N. C., 473, citing Henry v. Ballard, 4 N. C., 397, and In re Belcher, 66 N. C., 54, to the above purport, that: \u201cForm will be discarded, and has been, so that an instrument in form -a deed has been held to be a will.\u201d The subject is fully discussed with ample citation in Morrison v. Bartlett (Ky.), 41 L. R. A., 39. In the notes to this case are many interesting cases in which instruments in the form of a contract, acknowledgment of indebtedness, assignments, indorsements, bank deposits, commercial paper, leases, powers of attorney, orders on executors, and other informal papers are held to be sufficient as wills when the intent sufficiently appears that there is to be a disposition of the testator\u2019s property after death. This was not a contract, for it was not signed by the other party, nor was it a deed, for it was not delivered.\nKerr v. Girdwood, 138 N. C., 473, is reported with notes 107 Am. St., 551, which cite Ferris v. Nelville, 89 Am. St., 486, where the subject is fully discussed in a very illuminating monograph.\nIn 40 Cyc., 1091, it is said: \u201cIt is not necessary that any particular form of words be used to make a will. Any writing to take effect at death may constitute a will.\u201d The power to devise is purely statutory (In re Will of Garland, 160 N. C., 555), and our statute does not require any particular form, and, indeed, this will is sufficiently formal. The paragraph therein in regard to the promise o.f the devisee to take care of the testator during his lifetime is unsigned and at most mere surplusage.\nThis paper-writing'was neither signed by the other party nor was it delivered to him. It could not, therefore, be a contract; and if it is not a will, it is nothing. A case exactly in .point is Heaston v. Krieg (Ind.), 119 Am. St., 475, where as to an instrument which was entitled \u201ccontract\u201d and recited that it was an \u201cagreement\u201d between the deceased and another party in consideration ' of support during the former\u2019s lifetime, the Court held: \u201cNo matter by what name the parties to an agreement may call-it, or to what extent there may be contractual provisions in it, yet if a provision of a clearly testamentary character is found in the writing, and it is witnessed in accordance with the requirements of law, it may operate as a will.\u201d It was also held that \u201cA writing susceptible of being construed as a will and also as a deed will be construed as a will if it is a nullity as a deed.\u201d As already said, the present instrument is a nullity unless it is a will, as the testator emphatically characterized it. In that case the Court said: \u201cIt affords no objection whatever to tbe testamentary character of an instrument that it contains provision of a contractual nature,\u201d citing numerous cases.\nIn Smith v. Eason, 49 N. C., 34, it is said: \u201cIn ascertaining whether an instrument was intended by the mater to operate as a bond or as a will, words which may not change the-legal effect of the instrument, if its character has been established, may be quite material in determining its character,\u201d as in this case, the statement of the maker, emphatically reiterated, that it was \u201chis last will and testament.\u201d\nError.", "type": "majority", "author": "Clark:, C. J." } ], "attorneys": [ "Fred M. Parrish, Phillip Williams, and Hastings & Wiclier for caveator.", "Sapp & McKaughan and Holton & Holton for propounder." ], "corrections": "", "head_matter": "In re Will of PARIS EDWARDS.\n(Filed 1 November, 1916.)\n1. Wills \u2014 Interpretation\u2014Contracts.\nWhere a paper-writing begins with the usual formality and declares itself to be the will of the testator, before making disposition of his property, and thereafter the testator revokes therein all former wills which he had made, and it is duly subscribed and witnessed in accordance with the requirements for a will, it does not lose its character as such, or assume that of a contract, because of an unsigned provision that the beneficiary agrees to support the testator \u201cas long as he lives\u201d; and this clause may be disregarded as surplusage, when the instrument has been retained by the testator.\n2. Same \u2014 Validity Upheld.\nWhere a paper-writing will operate as a will and not as a contract, it will be upheld as the former.\n3. Wills \u2014 Devises\u2014Statutes\u2014Forms.\nThe power to devise is purely statutory, requiring no special form to give the intention of the testator effect as his will.\nAppeal by propounder from Webb, J., at May Term, 1916, of For-SYTH.\nDevisavit vel non begun before the clerk and transferred to the Superior Court for trial on the issue raised by caveat.\nThe court instructed the jury, \u201cAfter a careful examination of the paper the court is of the opinion that it is not a will,\u201d and the jury so found. The propounder excepted and appealed.\nFred M. Parrish, Phillip Williams, and Hastings & Wiclier for caveator.\nSapp & McKaughan and Holton & Holton for propounder." }, "file_name": "0369-01", "first_page_order": 435, "last_page_order": 438 }