#### In re Will of GEORGE M. BENNETT.

(Filed 15 September, 1920.)

1. Wills — Holograph Wills — Betters—Statutes.

For a letter wholly written and signed by a deceased person to be construed as his holograxih will, the provisions of our statutes, Rev., 3113 (2) and 3127 (2), must be scrupulously observed and followed in all essential respects and with substantial precision.

2. Same — Intent to Make a Will.

A letter wholly written and signed by a deceased person, to operate as his holograph will, must show his present intention to will his estate, or his purpose to dispose .of it after his death, and this intention must exist at the time of the writing; and an expression in the letter that the writer wanted the addressee thereof to have everything he had in the world, “and I will have it fixed if I can have the chance,” etc., only indicates the purpose of the writer to make a will in the future, in favor of the addressee, to the effect stated, and-the writing is upon its face invalid as a holograph will.

3. Wills — Holograph Wills — Deposit for Safe Keeping.

A letter written wholly by the testator, and signed by him, stating that he wanted the addressee to have all of his property, and that he “would have it fixed if he had the chance,” bears no evidence upon its face that *6the writer intended that it should be deposited with any one for safe beeping, as required by our statutes, Rev., 3127 (2), and without further evidence of a request that it be kept, or preserved, or that it was other than any ordinary or casual letter, it is insufficient in this respect as a holograph will were it otherwise sufficient.

Civil action, tried before Granmer, J., and a jury, upon an issue of devisavit vel non, at May Term, 1920, of Beaufobt.

This is a caveat to the alleged will of George M. Bennett, deceased, the paper-writing propounded as his will being in the following language:

Nov. 11, 1917.

Deak EbieNb: — I will try and write you a few lines to let you here from me, I am still shut up for measles but haven’t broke out but I am some sick. My feever is a 104 and I am a hurting through my breast and I cough so at night I can’t sleep and I don’t want nothing to eat. I will be sent to the Hospital as soon as I brake out I hope I will get along all right and I truly hope you all are well but beleve me I am some blue today this is wrote on Sunday evening but you cant hardly tell the difference only they drill on Sunday there is a lot works right on and play match games all day and gamble and do eny thing except something good. J S I feel so bad. I cant write but a few lines tell all that I send my love to them and I hope God will be with me until we meat again.

I will have to close for this time and you write and let me here from you I dont know wher I will be able to answer or not but George H. Hodges sed he would git my mail to me. Answer soon, from a loving friend, G- H. Bennett.

Iff aney thing happens to me I want you to have ever thing I got in the world and I will have it fixed iff I can have the chance for you have done moore for me than aney one on earth,

from one who love you,

G. M. BeNNEtt.

. There was testimony tending to show that the alleged testator was an enlisted soldier of the United States, and stationed at Camp Jackson, near Columbia, S. C., and that, at the time he wrote the letter to J. S. Lewis, the general beneficiary of his property named in the paper above set out, he was very sick in camp, where he died 13 or 14 November, 1917, and that the letter and address on the envelope in which it was enclosed were all in his handwriting. J. S. Lewis testified that Bennett had worked with him five or six years before going to the great.war; that he was not related to him, and that Bennett had a father and a sister now living. That he owned real estate, but he did not know how much. He went to see him at the camp as soon as he heard of his condi*7tion, but árrived there only thirty minutes before he died. There was also testimony that he was of sound mind when he left for the camp. None of the witnesses saw him after he became sick. There was no testimony that the relations between Bennett and his father and sister were otherwise than those usually and generally subsisting between persons bearing such relations to each other, nor was there any suggestion that their relations were not cordial or affectionate. In regard to his personal relations with them, a witness, J. S. Stilley, testified: “I knew George M. Bennett; have known him all my life. He had been living with Mr. Lewis for five or six years before he went to Camp Jackson. I know his hand-writing. I have examined this paper, including every part, the signature and all. It is in the handwriting of George M. Bennett. He was twenty-five or' thirty years old. The last time I saw him was when he went off to Camp Jackson. At that time he was in his right mind so far as I know. "When he was drafted he was living one-half or three-quarters of a mile from his father. I have seen him at his father’s house two or three times when his father was sick; he had been sick, but was well before George went off. I have never had a conversation with Mr. Joseph Lewis in which he made a statement to me about the young man’s sanity. I just cannot remember when his mother died. His sister lived one-half to three-quarters of a mile from him. He associated with her once in a while. I know this handwriting, it is George Bennett’s. He refers to his sister’s daughter as ‘Dear Kate.’ This is his handwriting, dated 18 October, 1917; and this, too, dated 5 November, 1917. Mr. Lewis was a farmer. George M. Bennett worked with him on the farm. I just know about where I have been told that tract of land lies. I do not know who was in possession. I do not know whether it was land owned by his father.” While we state this testimony literally, as it appears in the record, and the -substance of -the rest of it, it may not be very material, except as bearing in a general way upon the intention of Bennett to make his letter of 11 November, 1917, his last will and testament.

The caveators requested that the following instructions be given to the jury:

“1. If you believe the evidence, and find the facts to be as it tends to prove, you will answer the issue ‘No.’ Befused, and caveators excepted.

“2. That one of the controlling factors in determining whether a paper-writing propounded for probate as the last will and testament of the writer is, that the writer of the instrument had, at the time of writing it, the intention to dispose of -his property by the same, and even if the jury should find from the evidence that the testator wrote’ the paper in question and intended -to dispose of his property in the manner therein set out, he did not intend for said instrument to be his will, but *8intended to execute another instrument setting forth the disposition of his property, then, in that event, the paper-writing propounded would not be the last will and testament of said Geo. M. Bennett, and you should answer the issue ‘No.’ Refused, and caveators excepted.”

The jury found the issue in favor of the propounder. Judgment upon the verdict, and defendant appealed.

Small, MacLean, Bragaw & Hodman for propounders.

Ward & Grimes for caveators.

Walbiee, J.,

after stating the case: The learned judge who presided at the trial of this case should have directed the jury to answer the issue in favor of the caveators, or., in other words, “No,” as there was no evidence, in a legal sense, that the paper-writing, which was propounded by the beneficiary named in it, and, thereafter, admitted to probate in common form, or any part 'thereof, was the will of George M. Bennett, the supposed testator, or the miscalled testator.

By our statute the Legislature has made careful and safe-guarding provision for the execution and probate of wills, they being the last expression of the intention of their makers regarding the disposition of their property after death, and we have held repeatedly, as we should have held, undoubtedly, that these provisions must be scrupulously observed and followed in all essential respects, and with substantial precision, or at least accuracy. Rev., 3113, 3121 (1 and 2). The object of the law is that there may be.no doubt as to the intention of the supposed testator to make his last will and testament, and as to the fact of his haying done so by the particular writing offered for probate, thereby identifying it as the true and only document defining his intentions to will his estate and his purpose as to how it should be disposed of after his death. The two intentions to make a will and to dispose of his estate in the manner described in the paper-writing in question must concur and coexist. While a will must be contained in a writing, no formal testamentary instrument is required. If it adequately sets forth a testamentary intent it is enough. In many instances wills have taken the form of other instruments, while in others they have been wholly informal. A will may take the form of an assignment, or of a deed, or of a power of attorney, or of a letter, or of a promissory note, or of an order, etc., say the authorities. It may assume the form of any instrument, or be absolutely informal. This principle is well settled and numerous examples of such wills are to be found in the law books and decisions of the Courts here and'abroad. Gardner on Wills (1st ed.), pp 36 to 43, and the Courts have gone very far to support such documents as valid wills, but at the same time they have required sufficient *9certainty and assurance as to tbe intention 'to' presently, or at tbe time tbe particular document comes into existence, make a will, and as to tbat paper being tbe very will be intended to make'. Gardner, at p. 40; says: “So a letter written by a testator to a friend, authorizing bim to take charge and dispose of tbe testator’s property, and to sell and convey tbe same as bis executor, properly attested, sufficiently evidences tbe testator’s intention to dispose of bis property, and may be probated as a will. But a letter, like any other instrument, to take effect as a will, must be executed in compliance with tbe requirements of tbe statute, and must express a genuine present and not merely an anticipated testamentary intent

Mr. Jarman, in bis work on Wills (6 ed.), p. 21, says, in substance at least: “Tbe law has not made requisite to tbe validity of a will tbat it sboxild assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient tbat tbe instrument, however irregular in form or inartificial in expression, discloses its testamentary character and tbe intention of tbe maker. respecting tbe posthumous destination of bis property; and if this appears to be tbe nature of its contents, any contrary title or designation be may have given to it will be disregarded.”

In tbe case of In re estate of C. B. Richardson (appeal of Nina R. Hardee), 94 Calif., 63, tbe Court held tbat a letter, which merely expressed a desire tbat bis sister and her children get everything be owned, but containing words indicating tbat they should take it by a formal will, or by one be would make, was not testamentary in character, but only tbe expression of a desire, it clearly not being tbe intention tbat tbe letter should be so construed as to become bis last will. It is argued tbat many cases held tbat such a letter constituted a will, but with this statement we cannot agree. Those referred to manifestly contained evidence of an intention to then devise and bequeath tbe writer’s estate, or, in other words, tbat tbe letter should have a present and full operation as a will, leaving nothing to be done in tbe future in respect to tbe matter. But here there is on tbe face of tbe letter an expression which clearly indicates tbe intention tbat it should not itself be Bennett’s will, but tbat some other document, more formal in character, should be, and this be would have fixed if be bad a chance. Tbe general- tenor of tbe will shows an expectation, if not a confident hope, of bis restoration to health. He expresses tbe hope tbat “God will be with them until they meet again.” v

He was not in extremis, even if quite ill with measles, as bis temperature was 104, or 5 2/5 degrees above tbe normal, and be felt badly. He anticipated, though, tbat be would eventually carry out bis wish, when better able to dó so. Tbe language of tbe paper is but tbe manifestation *10of Ms purpose to do something in the future, but is, by no means, a present testamentary disposition of Ms property. It is more an expression of bis gratitude' for- past favors, and a desire to reward the pro-pounder in the future by willing Mm property. We cannot bold, under our law, that it rises to the dignity and solemnity of a last will and testament.

The statute requires, in the case of a holographic will, that the paper be deposited with some person for safe keeping, unless it is properly attested, or is found among the valuable papers and effects of the maker. This letter bears no evidence on its face, nor is there any proof otherwise that Bennett intended that it should be deposited with the propounder, or any one else, for safe keeping. There is no request that he keep or preserve the letter, or that he do anything more with it than he would with any ordinary or casual letter received from him, or any other person.

The case of Haberfield v. Browning, 4 Vesey, Jr., 200, referred to in Mathews v. Warner, 4 Vesey, Jr., at p. 200 (31 Full Reprint Series of Eng. Reports, p. 102), is sometimes relied on to sustain j)apers of- this kind as wills. That was a case of instruction to an attorney to draw up-a will, which, for special reasons, was held as a valid will. But in Mathews v. Warner, 4 Vesey, Jr., 186, it was insisted that it did no.t apply to a case of this kind, “where upon the face of the paper it is not intended as a testamentary disposition.” There is no present disposition, nor did the deceased ever intend by signing it, “that it should immediately operate,” adding that “there are many sensible passages applicable to the subject in Shep. Touchstone, 404 to 408.” The Court, by so famous a judge as Lord Loughbonough, accepted this contention as sound and correct.

We cannot refrain from adding to this opinion the great weight of that able jurist’s view as expressed by Mm in Mathews v. Warner, supra: “Under all these circumstances, with this evidence, and above all, the evidence of the paper itself, I should have no difficulty, sitting as I have sat in a Court of Law, to put it so to the jury, that I should expect a verdict that he had not devised; that it was no will, but only a project of a will, not a complete, definite rule and law for settling his fortune. It is not, it cannot, be denied, the argument presses so strong, that upon the perusal of this paper the natural conclusion is that it was Ms intention to make a more formal paper than this. That inference cannot possibly be avoided. Then ex hypoihesi this paper at the time he subscribed it was not the law, the testament. When then, at what period, did the voluntas testandi exist in his mind quoad this instrument? If it is admitted, as it must be, -that when he subscribed his name he was looking to some future act, the decision that this is his will would de*11stroy tbe most general maxim I know of, ‘voluntas testatoris ambulatoria est usque ad mortem.’ No man can answer tbe question, at wbat time tbat intention existed in bis mind. I know there was a period wben a contrary intention existed. He bas given tbat evidence under bis own band by tbe paper of 1789. Under all these circumstances, I should have felt myself obliged, as an act of duty, strongly to press upon tbe consideration of tbe jury tbe utter impossibility upon tbe fair view of tbe evidence of making tbe supposition, tbat this was tbe will, and I must have added another circumstance, tbat it was bis last will. Tbe manner in which it was kept, with so little attention, tbe place where it was found, these circumstances are always of great consideration. But though tbat is tbe bias of my mind, I am very far from saying it may not be a necessary conclusion in tbe Court, which is to decide by other maxims than we are acquainted with here, tbat this will may be established; but I wish tbe point, after it bas been well canvassed and considered, to be felt as a point of great weight and importance; and if such things are to be established as wills, it loudly requires tbe interference of tbe Legislature to prevent such a latitude in tbat respect as makes tbe disposing of all a man’s fortune tbe most slight and trivial act, attended with much less of form, solemnity, and precision than any act be could do with regard to any part of bis property during bis life.”

Suffice it to say, tbat tbe best considered and weightiest authorities upon this important question bold with us tbat a paper, such as this, is not, in law, a last will, and this case, we think, by reason of its special facts and tbe peculiar language of tbe paper, especially that of tbe last clause, is much stronger for tbe caveators than any one in tbe large group which support their view.

It is impossible to read tbe paper now before us for consideration, and come to tbe conclusion tbat it is a testamentary one. It states merely an intention to execute something in tbe future as bis will, which be may or may not do after fuller consideration, for, as said by Lord Loughborough, supra, and translating bis Latin, “tbe will of a testator is ambulatory even to bis death,” which means, in other words, tbat it is not fixed legally, but may be changed even to tbe time of bis death.

There is also nothing in tbe language used which shows an intention to deposit tbe paper “with some person as bis will,”- but is a casual letter, written and mailed only as is a letter in any correspondence, and not attended by tbe solemnity which is, and should be, required in executing so important an instrument as a will.

Tbe cases of Spencer v. Spencer, 163 N. C., 83, and In re Will of Ledford, 176 N. C., 610, belong to that class of cases we have mentioned above, where tbe letters showed that they were written animo testandi, and tbat they should operate as wills, and not some other paper to be *12written in tbe future. In tbe Spencer case tbe Court said: “Tbe dis-ting'uisbing feature of all genuine testamentary instruments, whatever their form, is that tbe paper-writing must appear to be written animo testancli. It is essential that it should appear from tbe character of tbe instrument, and tbe circumstances under which it is made, that tbe testator intended it should operate as bis will, or as a codicil to it. In tbe case at bar tbe testator bad made bis will in New York City on tbe eve of bis departure for a European trip. This so-called codicil is á letter written to bis brother immediately after be bad executed bis will, and makes no reference to it. It is scarcely probable that tbe testator regarded, or intended, such a letter to be in any sense a part of bis will. 1 Redfield on Wills, star p. 114, and notes; St. Johns Lodge v. Callendar, 26 N. C., 335; Simms v. Simms, 27 N. C., 684.” This language, or tbe essential part of it, was quoted and approved in tbe Ledford case. Alston v. Davis, 118 N. C., 203, was overruled. Tbe case of Milam v. Stanley, 17 L. R. A. (N. S.), 1126, was decided upon tbe same principle. Tbe Court there said: “Tbe letter shows on its face that it is inartifi-cially written, but bis meaning is sufficiently apparent. He did not have in mind that be was thereafter to make bis daughters a deed to tbe bouse and lot. (Quoting language of letter.) These words show that be bad in mind, not something that be was going to do, but something that' be was then doing. In other words, they show that be intended them to have the bouse and lot by virtue of tbe letter be was then writing, and not by virtue of some instrument be was thereafter to write.”

It is not necessary to discuss the question whether tbe words of tbe statute, “or was lodged in tbe bands of some person for safe keeping” (Rev., 3127 (2)), meant some third person, or one not a beneficiary.

Tbe court erred in its instruction to tbe jury, and in not giving tbe caveators’ prayers.

New trial.