In Re Will of Taylor

Supreme Court of North Carolina

In Re Will of Taylor

17 S.E.2d 654, 220 N.C. 524, 1941 N.C. LEXIS 582

CourtSupreme Court of North Carolina

DecidedDecember 10, 1941

StatusPublished

Cited by1 cases

This text of 17 S.E.2d 654 (In Re Will of Taylor) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Will of Taylor, 17 S.E.2d 654, 220 N.C. 524, 1941 N.C. LEXIS 582 (N.C. 1941).

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Opinion

Baknhill, J.

To constitute a paper writing a last will and testament it must express a genuine present and not merely a future testamentary intent. The character of the instrument and the circumstances under which it was executed must disclose an act of testamentary disposition. Spencer v. Spencer, 163 N. C., 83, 79 S. E., 291.

The animus testandi required is more than an intent to execute a will. It is the intent to presently devise by the paper writing being then executed and that such writing shall have the full force and effect of a will. In re Bennett, 180 N. C., 5, 103 S. E., 917; In re Johnson, 181 N. C., 303, 106 S. E., 841. It is not sufficient that the writer express a present intent to thereafter make a will. It must appear from the language used that it was the writer’s intent that the paper itself should operate as a disposition of her property to take effect after death. In re Johnson, supra; In re Bennett, supra; Spencer v. Spencer, supra; In re Estate of C. B. Richardson, 94 Cal., 63; Gardner on Wills, 1st Ed., pp. 36-43.

“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 having done so by the particular writing offered for probate, thereby identifying it as the true and only, document defining *526 bis intention to will bis estate and bis purpose as to bow it should be disposed of after bis death. The two intentions to make a will and to dispose of bis estate in the manner described in the paper writing in question must concur and coexist.” In re Bennett, supra.

Applying these principles it appears that the paper writing propounded fails to measure up to the requirements of a valid will. Its effect is: (1) to express a desire that her husband shall have her property; (2) an intent to execute a will effecting that purpose if she is able to contact a lawyer; and (3) a request directed to her heirs apparent that they give the property to her husband in the event she dies before making testamentary disposition thereof. No part of the language used is depository in character. On the contrary, it negatives a present intent to devise. Hence, In re Bennett, supra, and In re Johnson, supra, are directly in point and are controlling.

The court erred in its instruction to the jury and in not instructing as requested by the caveators.

New trial.

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Baknhill, J.

To constitute a paper writing a last will and testament it must express a genuine present and not merely a future testamentary intent. The character of the instrument and the circumstances under which it was executed must disclose an act of testamentary disposition. Spencer v. Spencer, 163 N. C., 83, 79 S. E., 291.

The animus testandi required is more than an intent to execute a will. It is the intent to presently devise by the paper writing being then executed and that such writing shall have the full force and effect of a will. In re Bennett, 180 N. C., 5, 103 S. E., 917; In re Johnson, 181 N. C., 303, 106 S. E., 841. It is not sufficient that the writer express a present intent to thereafter make a will. It must appear from the language used that it was the writer’s intent that the paper itself should operate as a disposition of her property to take effect after death. In re Johnson, supra; In re Bennett, supra; Spencer v. Spencer, supra; In re Estate of C. B. Richardson, 94 Cal., 63; Gardner on Wills, 1st Ed., pp. 36-43.

“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 having done so by the particular writing offered for probate, thereby identifying it as the true and only, document defining *526 bis intention to will bis estate and bis purpose as to bow it should be disposed of after bis death. The two intentions to make a will and to dispose of bis estate in the manner described in the paper writing in question must concur and coexist.” In re Bennett, supra.

Applying these principles it appears that the paper writing propounded fails to measure up to the requirements of a valid will. Its effect is: (1) to express a desire that her husband shall have her property; (2) an intent to execute a will effecting that purpose if she is able to contact a lawyer; and (3) a request directed to her heirs apparent that they give the property to her husband in the event she dies before making testamentary disposition thereof. No part of the language used is depository in character. On the contrary, it negatives a present intent to devise. Hence, In re Bennett, supra, and In re Johnson, supra, are directly in point and are controlling.

The court erred in its instruction to the jury and in not instructing as requested by the caveators.

New trial.

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17 S.E.2d 654, 220 N.C. 524, 1941 N.C. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-will-of-taylor-nc-1941.

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