I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below construe former G.S. 31-3.

For a will to be admitted to probate, G.S. 31-18.1(a)(1) requires that the will meet the requirements of this section and that two of the attesting witnesses testify before the court. In re Will of Everhart, 88 N.C. App. 572, 364 S.E.2d 173, cert. denied, 322 N.C. 112, 367 S.E.2d 910 (1988).

In order to prove formal execution of a will by subscribing witnesses, as required by this section, it must appear that the will was signed by the testator or some other person in his presence and by his direction, and subscribed in his presence by at least two witnesses and when the testator does not sign the will in the presence of the witnesses, the signature should be acknowledged by him. In re Will of Franks, 231 N.C. 252, 56 S.E.2d 668 (1949). See In re Morrow's Will, 234 N.C. 365, 67 S.E.2d 279 (1951).

In order to be a valid written will with witnesses, the same should be signed by the testator or some other person in his presence and by his direction, or the signature should be acknowledged by the testator, and subscribed in his presence by at least two witnesses. Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089 (1913).

A codicil must be executed with the same formality as the will. Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 352 (1940); In re Will of King, 80 N.C. App. 471, 342 S.E.2d 394, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

Testimony Showing Formal Execution of Will. - Testimony of one subscribing witness to the effect that he signed the instrument at the request of testator simultaneously with the testator, and testimony of the other that when he signed same it had already been signed by testator, together with testimony that testator stated to the witnesses that the instrument was his will and requested them to sign same, was held sufficient to show formal execution of the will and to support the charge of the court hereon. In re Will of Franks, 231 N.C. 252, 56 S.E.2d 668 (1949).

Conformance with Statutory Requirements Is Prima Facie Proof. - In a caveat proceeding, proof of the formal execution of an attested will in conformity with the statutory requirements establishes prima facie that the offered document is the will of the testator and is sufficient to allow the jury to find that the document is the will of the testator. In re Will of Cooley, 66 N.C. App. 411, 311 S.E.2d 613 (1984).

Order of Signing and Attestation. - Some authorities hold that everything required to be done by the testator in the execution of a will shall precede in point of time the subscription by the attesting witness, and that if the signature of the latter precede the signing by the testator the will is void. Until the testator has signed, there is no will and nothing to attest. There are eminent authorities, however, which hold that where the signing of the testator and of the witnesses took place at the same time and constituted one transaction, it is immaterial who signed first. In re Baldwin, 146 N.C. 25, 59 S.E. 163 (1907).

Distinction Between Signing and Subscribing. - The authorities make a distinction between statutes requiring instruments to be signed and those requiring them to be subscribed, holding with practical unanimity in reference to the first class, that it is not necessary for the name to appear on any particular part of the instrument, if written with the intent to become bound; and, as to the second class, that the name must be at the end of the instrument. Peace v. Edwards, 170 N.C. 64, 86 S.E. 807 (1915); In re Williams' Will, 234 N.C. 228, 66 S.E.2d 902 (1951), commented on in 30 N.C.L. Rev. 201 (1952).

Undated Will. - The testator's signature to the will is required though it is not required that the paper-writing be subscribed or dated. Therefore an undated will, when the name of the testator, in his own handwriting, appears in the body thereof, has the same legal effect as those bearing dates and subscribed by the testator. Peace v. Edwards, 170 N.C. 64, 86 S.E. 807 (1915).

Where Only One of Inconsistent Wills Dated. - Where the decedent has left several paper-writings purporting to be his last will, containing the opening declaration, as to each, that the testator made the same as his "last will and testament," but only one of them bears date and his name subscribed thereto, and each of them making a disposition of his property different from the other, the undated and unsubscribed wills have the same legal effect as the one dated and subscribed, though the testator had indorsed under his signature, thereon, the words "last will"; and in the absence of proof as to which of the wills was the last one, the legal effect is intestacy. Peace v. Edwards, 170 N.C. 64, 86 S.E. 807 (1915), construing former G.S. 31-3.

Applied in In re Crawford's Will, 246 N.C. 322, 98 S.E.2d 29 (1957); In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Cited in In re Covington's Will, 252 N.C. 546, 114 S.E.2d 257 (1960); In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155 (1962); In re Will of Cobb, 271 N.C. 307, 156 S.E.2d 285 (1967); In re Will of Hodgin, 10 N.C. App. 492, 179 S.E.2d 126 (1971); In re Will of Weston, 38 N.C. App. 564, 248 S.E.2d 359 (1978); Brickhouse v. Brickhouse, 104 N.C. App. 69, 407 S.E.2d 607 (1991); In re Will of Jarvis, 107 N.C. App. 34, 418 S.E.2d 520 (1992); In re Will of McCauley, 356 N.C. 91, 565 S.E.2d 88 (2002); In re Will of Campbell, 155 N.C. App. 441, 573 S.E.2d 550 (2002), cert. denied, 357 N.C. 63, 579 S.E.2d 385 (2003).

II. SIGNING BY OR FOR TESTATOR.

Editor's Note. - Some of the cases cited below construe former G.S. 31-3.

Signing in Presence of Witnesses Not Necessary. - This section does not require the testator to manually sign his will in the presence of the subscribing witnesses, and the validity of the written instrument in this respect will be upheld if the testator produces the will itself, and acknowledges and identifies it and his signature thereto, at the time the witnesses subscribe their names as such. Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089 (1913); In re Fuller's Will, 189 N.C. 509, 127 S.E. 549 (1925).

It is not required that testator sign the will in the presence of the attesting witnesses. In re Will of Etheridge, 229 N.C. 280, 49 S.E.2d 480 (1948).

It is not necessary that testator sign his will in the presence of the attesting witnesses, but if he does not do so he must acknowledge his signature either by acts or conduct. In re Will of Franks, 231 N.C. 252, 56 S.E.2d 668 (1949).

Name of Testator May Be Signed by Another. - That the name of the testator may be signed to the paper-writing by some other person in his presence and by his direction is expressly authorized by the statute. In re Williams' Will, 234 N.C. 228, 66 S.E.2d 902 (1951), commented on in 30 N.C.L. Rev. 201 (1952).

Signature Made for Testatrix in Her Presence. - An instruction that it was not required that the will should be manually signed by the alleged testatrix if her name was signed thereto by someone in her presence, by her direction, or if such a signature was acknowledged by her as her signature to the instrument presented as her last will, was held correct. In re Will of Johnson, 182 N.C. 522, 109 S.E. 373 (1921).

Assistance to Physically Weak Testator. - Where the testator signified by a nod of his head that the paper writing read to him was his will, and although the testator was severely physically incapacitated, he was mentally alert and able to make known any objection he might have had to the minister signing his name to the will, and this he failed to do; indeed, he placed his hand upon the pen while the minister made his mark, this evidence gives rise to an inference to be resolved by the jury as to whether the will was duly executed according to law. In re Will of Knowles, 11 N.C. App. 155, 180 S.E.2d 394 (1971).

Assistance by Attorney. - Attorney's assisting testator to form his mark and signing testator's name legibly beside each mark did not disqualify him as a witness. In re Will of Jarvis, 334 N.C. 140, 430 S.E.2d 922 (1993).

Evidence that testator made his mark on codicil in the presence of the witnesses indicates that the instrument was his, and is sufficient to imply a request that they attest his signature. In re Will of King, 80 N.C. App. 471, 342 S.E.2d 394, cert. denied, 317 N.C. 704, 347 S.E.2d 43 (1986).

The North Carolina statutes have never required a testator to subscribe his signature to his will. Yount v. Yount, 258 N.C. 236, 128 S.E.2d 613 (1962).

Where a will is written on two or more separate sheets, the statute does not require that they be physically attached or that the signature of the testator appear on each sheet. It is sufficient if the signature of the testator appears in any part of the will. In re Roberts' Will, 251 N.C. 708, 112 S.E.2d 505 (1960); In re Sessoms' Will, 254 N.C. 369, 119 S.E.2d 193 (1961).

Fact Issue. - Propounder was not entitled to summary judgment in a caveat proceeding because affidavits by blood relatives stated the affiant was familiar with the decedent's signature and the signature on a will was not the decedent's. In re Estate of Phillips, 251 N.C. App. 99, 795 S.E.2d 273 (2016).

III. ATTESTATION BY WITNESSES.

.

Editor's Note. - Some of the cases cited below construe former G.S. 31-3.

Attestation in Presence of Testator Is Essential. - It is essential that the will be subscribed in the presence of the testator by at least two witnesses. In re Thomas, 111 N.C. 409, 16 S.E. 226 (1892).

Material issue of fact existed regarding whether a testator complied with the will formalities required by G.S. 31-3.3 where the evidence tended to show that the testator did not sign the will in the presence of one of the witnesses; that evidence raised material questions of fact on whether the will complied with the testamentary formalities of G.S. 31-1 and G.S. 31-3.3, so summary judgment in favor of the propounder of the will was improper. In re Will of Priddy, 171 N.C. App. 395, 614 S.E.2d 454 (2005).

If the subscribing witnesses signed a will in a room adjacent to the room in which testator was lying in bed, but the testator was in a position where he did see or could have seen them subscribe their names, the attestation was in compliance with law. In re Pridgen's Will, 249 N.C. 509, 107 S.E.2d 160 (1959).

Witnesses Need Not Sign in Presence of Each Other. - See In re Will of Franks, 231 N.C. 252, 56 S.E.2d 668 (1949). See also Watson v. Hinson, 162 N.C. 72, 77 S.E. 1089 (1913); In re Will of Johnson, 182 N.C. 522, 109 S.E. 373 (1921).

Witnesses are not required to sign in the presence of each other; only in the presence of the testator. In re Long's Will, 257 N.C. 598, 126 S.E.2d 313 (1962).

Where the judge told the jury that if the signatures of the witnesses "were subscribed thereto at the request of the testator and in his presence and in the presence of each other" they would answer the issue of execution of the will "Yes," this was error, and a new trial was required even though all the evidence tended to show that the witnesses did sign in the presence of each other. In re Long's Will, 257 N.C. 598, 126 S.E.2d 313 (1962).

Where witness who signed the will in a location different from the other two witnesses testified and stated in her affidavit that she was a witness to the testator's mark at the request of the testator, who declared the document to be his will, the trial court did not err in finding that witness was an attesting witness. Brickhouse v. Brickhouse, 110 N.C. App. 560, 430 S.E.2d 446 (1993).

The attestation by witnesses must be on the sheet of paper containing the testator's signature, or else upon some paper physically connected with that sheet. In re Baldwin, 146 N.C. 25, 59 S.E. 163 (1907).

Signing of Copy. - When a witness who had properly signed as such, no other witness signing, had the will copied upon different paper in the absence of the testator, signed the copy, left it at the home of the testator with the original, who afterwards procured the due attestation and signature of the other witness on the copy, both of which were found among the papers of the testator after his death, but the original was destroyed, the copy is not valid as a will, and evidence that the first draft was identical with the copy is incompetent, the first witness having signed before the testator, and not in his presence, there being no physical connection between the original and copy, and not upon the same paper as that of the signature of the testator. In re Baldwin, 146 N.C. 25, 59 S.E. 163 (1907).

Whether Attestation Impliedly Requested Is Question for Jury. - It is for the jury to determine whether the testatrix impliedly requested the attesting witnesses to attest the will, an implied request being sufficient to submit the question to the jury. In re Kelly's Will, 206 N.C. 551, 174 S.E. 453 (1934).

Attestation Sufficient Despite Wavering in Testimony. - Evidence tending to show that one of the subscribing witnesses signed the will as such in the presence of testatrix and the other subscribing witness warrants the jury in finding that the witness' subscription met the requirements of this section, notwithstanding that the witness wavered somewhat in her testimony. In re Redding's Will, 216 N.C. 497, 5 S.E.2d 544 (1939).

Instrument Held Not Validly Witnessed. - Where a witness subscribes his name to an instrument during the afternoon, and the purported testatrix signs the instrument the following night, but not in the presence of the witness, the signing of the instrument by the parties cannot be construed as one and the same transaction, and the instrument is not validly witnessed and attested by him, and, upon proof that the instrument was properly subscribed by one other witness, a peremptory instruction in favor of caveators is without error for want of proof that the instrument was subscribed by two witnesses. In re McDonald's Will, 219 N.C. 209, 13 S.E.2d 239 (1941).

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below construe former G.S. 31-3.

Legislative History of Section. - See In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155 (1962).

It is not required that a holographic will be dated or the place of its execution stated therein. Pounds v. Litaker, 235 N.C. 746, 71 S.E.2d 39 (1952).

A paper-writing in the handwriting of testatrix, duly proven by three credible witnesses, signed by testatrix and found among her valuable papers after her death, which paper-writing contains dispositive words sufficient to dispose of the estate, is valid as a holograph will under this section and G.S. 31-18.2, and it is not necessary that the writing be dated or show the place of execution. In re Parson's Will, 207 N.C. 584, 178 S.E. 78 (1935), citing In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876 (1930).

Words Not in Handwriting of Testator. - Every word of a holographic will must be in the handwriting of testator, and while words printed on the paper will not invalidate the instrument but will be treated as surplusage if such printed words are not essential to the written words, printed words or letters may not be used to supply any essential part of the instrument. Pounds v. Litaker, 235 N.C. 746, 71 S.E.2d 39 (1952).

When all the words appearing on a paper in the handwriting of the deceased person are sufficient 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 her last will and testament. In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876 (1930); In re Parson's Will, 207 N.C. 584, 178 S.E. 78 (1935), wherein the unessential words had been printed on the paper before the testator used it.

Attestation Does Not Invalidate Holographic Will. - The fact of there being a signature of one subscribing witness to a will of land does not prevent it from being proved as a holographic will; and it is no objection to the probate of a script as a holograph will that it has one subscribing witness, and was intended by the decedent to be proved by subscribing witnesses, which intent was frustrated by the fact that the second attesting witness was incompetent. Hill v. Bell, 61 N.C. 122 (1867).

Note Held to Be Codicil. - A note payable to the deceased, found with his holographic will in a box with his other valuable papers after his death, and endorsed thereon in the handwriting of the deceased and over his signature to his wife to take effect after his death, when proved as G.S. 31-18.2 requires, is to be construed as a codicil to his will, and it is not necessary to such construction that it be physically attached to the holographic will. In re Will of Thompson, 196 N.C. 271, 145 S.E. 393 (1928).

Margin Notes. - Additional words found on a holographic will, which were written in a different pen, were not sufficient to entitle caveators challenging the will to a directed verdict, and the jury was allowed to determine the will's authorship. In re Will of Allen, 148 N.C. App. 526, 559 S.E.2d 556 (2002).

Handwritten Notations Insufficient, Standing Alone, to Give Meaning to Words Used. - Superior court properly dismissed the beneficiaries' will caveat for failure to state a claim for which relief could be granted because the alleged codicil upon which the caveat was based was not a valid holographic codicil on its face where the handwritten notations on the alleged holographic codicil were not sufficient, standing alone, to give meaning to the words used. Hendrix v. Tantemsapya (In re Will of Hendrix), 259 N.C. App. 465, 817 S.E.2d 31 (2018).

Letter as Will. - A letter written by the deceased to his brother, signed by him "Brother Alex," just before the deceased had gone to a hospital for treatment, saying "Brother Richard, take good care of yourself and stay with William at the store. I am going to the hospital on account of not feeling well. I hope God nothing happens, but if it does, everything is yours. Got some money in the bank, but don't know how much we owe on house . . . I hope in a few days I will come back," etc., indicates the writer's present intention to dispose of his property, and is provable as his holograph will. Wise v. Short, 181 N.C. 320, 107 S.E. 134 (1921).

Letters written by a member of Armed Forces of the United States which are not offered or proven in the manner or form prescribed are ineffectual as a testamentary disposition of property. Wescott v. First & Citizens Nat'l Bank, 227 N.C. 39, 40 S.E.2d 461 (1946).

In Alston v. Davis, 118 N.C. 202, 24 S.E. 15 (1896), a brother in Texas wrote to his sister in North Carolina that if he got sick or died in Texas he wanted her to have his farm. He simply mailed her the letter. Subsequently he died in Texas and his sister undertook to probate the letter as a holographic will in this State. The question arose whether it had been deposited "with someone for safekeeping"; the court held that this constituted depositing with someone for safekeeping and that the will should be probated. In view of the fact that a testamentary disposition must be accompanied with animus testandi, the decision seems to be clearly unsound, inasmuch as the letter in question discloses no such intention. This conclusion is supported by later decisions of the court which in express terms refuses to follow the doctrine of Alston v. Davis. See Spencer v. Spencer, 163 N.C. 83, 79 S.E. 291 (1913).

It is believed that if the writer of the letter indicates clearly that by mailing it to the addressee he intends to deposit it as a will, the letter would be admitted to probate as such. See In re Ledford's Will, 176 N.C. 610, 12 N.C.L. Rev. 199, 97 S.E. 482 (1918).

Applied in In re Gatling's Will, 234 N.C. 561, 68 S.E.2d 301 (1951); In re Bartlett's Will, 235 N.C. 489, 70 S.E.2d 482 (1952); In re Crawford's Will, 246 N.C. 322, 98 S.E.2d 29 (1957).

Cited in In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970); In re Will of Lamparter, 348 N.C. 45, 497 S.E.2d 692 (1998).

II. TESTAMENTARY INTENT.

Editor's Note. - Some of the cases cited below construe former G.S. 31-3.

Evidence of Testamentary Intent Is Necessary. - Before any instrument can be probated as a testamentary disposition there must be evidence that it was written animo testandi, or with testamentary intent. In re Will of Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975).

An instrument may not be probated as a testamentary disposition unless there is evidence that it was written with testamentary intent, that is, that the maker intended that the paper itself should operate as a will or codicil to take effect upon his death. Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826 (1987).

The maker must intend at the time of making that the paper itself operate as a will, or codicil; an intent to make some foreign testamentary disposition is not sufficient. In re Will of Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975).

Instrument May Not Be Admitted to Probate. - If there is nothing on the face of the holograph from which a testamentary intent may be inferred or evidence is lacking that the instrument was found among the deceased's valuable papers or placed by him in the possession of some other person for safekeeping, the instrument may not, as a matter of law, be admitted to probate. In re Will of Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975).

Where Testamentary Intent Must Appear. - With regard to holographic instruments, the necessary animo testandi must appear not only from the instrument itself and the circumstances under which it was made, but also from the fact that the instrument was found among the deceased's valuable papers after his death or in the possession of some person with whom the deceased had deposited it for safekeeping. In re Will of Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975); Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826 (1987).

When Intent Issue Is for Jury. - Where a holographic instrument on its face is equivocal on the question of whether it was written with testamentary intent and there is evidence that the instrument was found among the valuable papers of the deceased the animo testandi issue is for the jury and parol evidence relevant to the issue may be properly admitted. In re Will of Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975).

Although the evidence, when viewed in a light most favorable to the nonmoving parties, clearly indicated that the will, including the handwritten provisions, was found among the testator's valuable papers and effects, that the handwritten notation evinced a clear intent regarding the desired disposition for the items contained in Article IV, and that those words explicitly showed that the will should be modified to eliminate Article IV, summary judgment was inappropriate because the phrase in the holographic codicil "begin[n]ing 7-7-03" was sufficiently ambiguous to create a genuine issue of material fact as to whether that provision indicated the required present testamentary intent. In re Will of Allen, 371 N.C. 665, 821 S.E.2d 396 (2018).

III. SIGNATURE.

.

Editor's Note. - Some of the cases cited below construe former G.S. 31-3.

It is necessary that the testator's name be inserted in his own handwriting in some part of the instrument. Pounds v. Litaker, 235 N.C. 746, 71 S.E.2d 39 (1952).

Name in Body of Will Sufficient Signature. - It is well settled that if the name of the testator appears in his handwriting in the body of the will this is a signing within the meaning of the statute. Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104, 107 Am. St. R. 474 (1904); Richards v. W.M. Ritter Lumber Co., 158 N.C. 54, 73 S.E. 485 (1911), modified on rehearing, 159 N.C. 455, 74 S.E. 1016 (1912); Boger v. Cedar Cove Lumber Co., 165 N.C. 557, 81 S.E. 784, 1917D Ann. Cas. 116 (1914); Burriss v. Starr, 165 N.C. 657, 81 S.E. 929, 1914D Ann. Cas. 71 (1914); Peace v. Edwards, 170 N.C. 64, 86 S.E. 807 (1915).

Under this section, a paper-writing in the testator's handwriting, dispositive on its face, with the name of the testator inserted therein his own handwriting followed by the words "this being my will" is sufficient in form to constitute a holographic will. In re Rowland, 202 N.C. 373, 162 S.E. 897 (1932).

Engraved Monogram of Testatrix Not Construed as Signature. - An engraved monogram of a testatrix, appearing on the instrument offered for probate in solemn form as a holographic will, may not be considered as a part thereof. The monogram is not in her handwriting and may not be construed to be her signature. Pounds v. Litaker, 235 N.C. 746, 71 S.E.2d 39 (1952).

Signature Need Not Be Witnessed. - It is not necessary that the testator's signature be witnessed if the requirements for a holographic will are established. In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155 (1962).

IV. FOUND AMONG VALUABLE PAPERS, ETC.

.

Editor's Note. - Some of the cases cited below construe former G.S. 31-3.

Location of Holographic Will. - The statute requires that a paper-writing sufficient to pass as a holographic will must be found, after the death of the testator, in one of five different places: (1) among the testator's valuable papers; (2) among the testator's valuable effects; (3) in a safe-deposit box; (4) in a safe place where it was deposited by the testator or under his authority; or (5) in the possession of a person or firm with whom it was deposited by the testator or under his authority for safekeeping. In re Will of Church, 121 N.C. App. 506, 466 S.E.2d 297 (1996).

Purpose of Requirement That Paper Be Found Among Valuable Papers. - The requirement of this section that the writing be found after death among testator's valuable papers was to show the author's evaluation of the document, important because lodged with important documents, to become effective upon death because left there by the author, thereby establishing the necessary animus testandi. In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155 (1962).

What Constitutes Valuable Papers. - Valuable papers consist of such as are regarded by a decedent as worthy of preservation, and therefore in his estimation, of some value. Much depends upon the condition and business and habits of the decedent in respect to keeping his valuable papers. Winstead v. Bowman, 68 N.C. 170 (1873).

The requirements of this section that a paper-writing sufficient to pass as a holograph will must be found after the death of the testator among his valuable papers and (now "or") effects must be liberally construed, and where it is found among the deceased's papers and effects evidently regarded by him as his most valuable papers, and are in fact valuable, under circumstances showing his intention that that will should take effect as being so found, it is sufficient. In re Will of Groce, 196 N.C. 373, 145 S.E. 689 (1928). See also Hughes v. Smith, 64 N.C. 493 (1870); In re Williams' Will, 215 N.C. 259, 1 S.E.2d 857 (1939).

If a document had been placed among the author's valuable papers without his knowledge and consent, it would have no validity as a will even though found among the papers after the author's death. In re Will of Gilkey, 256 N.C. 415, 124 S.E.2d 155 (1962).

Writing Found in Drawer with Deeds and Other Papers. - Where the proof showed that the script propounded as a holograph will was found in a small drawer of a bookcase, in the room which the alleged testator occupied at his death, with his deeds and other papers, it was held to be such a finding "among the valuable papers of the decedent" as will, in connection with the other evidence required by the statute in respect to handwriting, authorize its probate. Cornelius v. Brawley, 109 N.C. 542, 14 S.E. 78 (1891).

Writing Found with Other Papers. - Finding a holographic will in a wooden bowl on the testator's kitchen counter did not entitle caveators to a directed verdict because other documents of a financial nature were found in the same place, and the testator was a man of limited education. In re Will of Allen, 148 N.C. App. 526, 559 S.E.2d 556 (2002).

Deposit Among Unopened Mail. - A bona fide controversy existed as to whether a holographic document was found among the valuable papers and effects of the testatrix, where the document was discovered among some unopened mail on a sofa at the testatrix's home, in a small room which was used as an office. Lenoir Rhyne College v. Thorne, 13 N.C. App. 27, 185 S.E.2d 303 (1971), cert. denied, 280 N.C. 721, 186 S.E.2d 924 (1972).

A paper-writing found after testator's death in the pockets of the clothes he was wearing, with large sums of money and other papers of value was held to be effective as his will. In re Will of Groce, 196 N.C. 373, 145 S.E. 689 (1928).

Stored in Separate Pocketbooks. - Where testator stored valuable belongings in her pocketbooks, which she kept in her bedroom, one pocketbook on the inside of her bedroom door contained insurance papers, the deed to her home and a bank book, and the handwritten document was in another pocketbook, also in her bedroom, in an envelope labelled "This is my Will", the evidence supported the trial court's finding that the handwriting was found in a "safe place." In re Will of Church, 121 N.C. App. 506, 466 S.E.2d 297 (1996).

Need Not Be Found Among Most Valuable Papers. - The phrase "among the valuable papers and [now 'or'] effects," etc., used in this section does not necessarily and without exception mean among the most valuable papers, etc. So the fact that decedent kept valuable papers in a tin box in a bank which were intrinsically more valuable than papers kept in a trunk where the will was found would not prevent the latter from being a depository within the meaning of the section. Winstead v. Bowman, 68 N.C. 170 (1873).

Deposit Among Useless Papers and Rubbish. - In Little v. Lockman, 49 N.C. 495 (1857), the script propounded was found in the drawer of a bureau, among some useless papers and rubbish, and there were valuable papers and effects kept in another drawer of the same bureau. Under such circumstances the court properly held that the script was not found in such a place of deposit as was contemplated by the statute. Hughes v. Smith, 64 N.C. 493 (1870).

Evidence of Finding Among Valuables. - That a holograph script was seen among the valuable papers and effects of the decedent eight months before his death is no evidence that it was found there at or after his death. Adams v. Clark, 53 N.C. 56 (1860).

Evidence that the will of the deceased, wholly written and signed by her, was found among her valuable papers after her death, in a desk where she kept her business papers and papers she desired to keep for their sentimental value, and that it was transferred after her death, together with the other papers, to her trunk where they were found, was held sufficient, under the circumstances of the case. In re Will of Westfeldt, 188 N.C. 702, 125 S.E. 531 (1924).

Evidence as to whether the document in question was found among the valuable papers and effects of the deceased or in a safe place where it was deposited by her, in satisfaction of subdivision (a)(3) of this section, was sufficient to support the jury's determination that it was a valid holographic will. Stephens v. McPherson, 88 N.C. App. 251, 362 S.E.2d 826 (1987).

Jury to Determine Intention in Depositing with Valuables. - It was entirely proper in the judge to leave it to the jury to determine whether, from all the circumstances, they believed that the paper-writing was deposited by the deceased among his valuable papers with the intention that it should be his will. Simms v. Simms, 27 N.C. 684 (1845); Hill v. Bell, 61 N.C. 122 (1867).

Deposit in a Trunk Left with a Friend for Safekeeping. - The placing of a holographic will in a trunk, left for safekeeping with a friend, and having it in the larger part of the valuable papers and money of the deceased, will satisfy the requirements of the statute upon the point of deposit. Hill v. Bell, 61 N.C. 122 (1867).

Opinions of Attorney General

Sufficient Signature. - Where the handwriting of a testator in a holographic will can be proved and there are no defects in other respects, it is sufficient signature for the testator in a holographic will to sign or write his name in his own handwriting in the body of the will. See opinion of Attorney General to Honorable Robert Miller, Clerk, Superior Court, Stokes County, 40 N.C.A.G. 36 (1969).

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below construe former G.S. 31-5 or prior law.

One lacking testamentary capacity is not competent to revoke a prior will. The same degree of mental capacity is necessary to revoke a will as to make one. In re Shute's Will, 251 N.C. 697, 111 S.E.2d 851 (1960).

Revocation of Holographic Will. - It seems clear that a holographic will may be revoked just as an attested will may, i.e., (1) by burning, tearing, canceling or obliterating or (2) by another will, which may be holographic or attested, provided only that the statutory requirements in each case are complied with. No witnesses are necessary on the holographic revocation. See 14 L.R.A. (n.s.) 968 (1908) and 112 Am. St. R. 822, 2 N.C.L. Rev. 110.

Effect of Disposal of Articles Already Bequeathed. - A bequest of personal property in a trunk which contained the holographic will and other valuable papers of the deceased, after removing certain articles specifically bequeathed to others, is not a revocation of her will by the testatrix. In re Foy, 193 N.C. 494, 137 S.E. 427 (1927).

Revocation by Parol Prior to Former G.S. 31-5. - See Giles v. Giles, 1 N.C. 377 (1801), decided prior to the enactment of former G.S. 31-5, where it is held that a will of real estate in writing may be revoked by parol if the words of revocation denote a present intention to revoke.

Revival by Parol Declaration. - A revocation of a will of real estate carried completely into effect cannot be revived by any subsequent declaration by parol. Giles v. Giles, 1 N.C. 377 (1801).

Issue of Revocation Is for Jury. - Probate is an in rem action and the issue of revocation raised by caveat is for determination by the jury, and the court may not grant a motion for directed verdict. In re Will of Hodgin, 10 N.C. App. 492, 179 S.E.2d 126 (1971).

Trial judge does have authority to set aside the verdict in his discretion when the verdict is against the greater weight of the evidence. In re Will of Hodgin, 10 N.C. App. 492, 179 S.E.2d 126 (1971).

Instruction Held Without Error. - See In re Gatling's Will, 234 N.C. 561, 68 S.E.2d 301 (1951).

Applied in Mansour v. Rabil, 277 N.C. 364, 177 S.E.2d 849 (1970).

Cited in In re Will of Burton, 267 N.C. 729, 148 S.E.2d 862 (1966); Craig v. Calloway, 68 N.C. App. 143, 314 S.E.2d 823 (1984); In re Will of Dunn, 129 N.C. App. 321, 500 S.E.2d 99 (1998), review dismissed and cert. denied, 348 N.C. 693, 511 S.E.2d 645 (1998).

II. SUBSEQUENT WILL OR CODICIL.

Editor's Note. - Some of the cases cited below construe former G.S. 31-5.

Revocatory Paper Must Be a Testamentary Paper. - Where the writing offered as operating a revocation of the will of the testator contains none of the elements of a testamentary paper, it cannot be helped by evidence aliunde, and hence has no revocatory effect. Davis v. King, 89 N.C. 441 (1883).

Presumption as to Second Will. - A will may be revoked by a subsequent instrument executed solely for that purpose, or by a subsequent will containing a revoking clause or provisions inconsistent with those of the previous will, or by any of the other methods prescribed by law; but the mere fact that a second will was made, although it purports to be the last, does not create a presumption that it revokes or is inconsistent with one of a prior date. Where testator devised a certain part of his lands to L, and by a later will gave his effects to his brothers and sisters, the two wills were not inconsistent and the latter did not revoke the former. In re Wolfe's Will, 185 N.C. 563, 117 S.E. 804 (1923).

Presumption Overcome by Evidence. - Caveators presented sufficient evidence to overcome the presumption that a testator destroyed his 2002 will with the intent to revoke it, and a directed verdict against the caveators was error; inter alia, the testator's attorney testified that testator never mentioned a desire to change the 2002 will, and there was also evidence that someone moved the testator's 1995 will after his death. In re Will of McFayden, 178 N.C. App. 704, 632 S.E.2d 520 (2006), rev'd in part, 179 N.C. App. 595, 635 S.E.2d 65 (2006).

Revocation by Codicil Not Containing Express Words of Revocation. - In the absence of express words of revocation, it is a rule of construction that for a codicil to revoke any part of a will its provisions must be so inconsistent with those of the will as to exclude any other legitimate inference than that the testator had changed his intentions. Yount v. Yount, 258 N.C. 236, 128 S.E.2d 613 (1962).

Evidence of the preparation of a later dispositive instrument, without evidence that it was ever executed according to the formalities necessary to make it a valid will and without evidence that it contained any words of revocation or provisions contrary to a prior will, duly executed, is insufficient evidence of revocation of the will to justify the submission of the question of revocation to the jury. In re Crawford's Will, 246 N.C. 322, 98 S.E.2d 29 (1957).

To establish the revocation of a will by a subsequent writing it is necessary to prove the revocation in the manner required to establish the validity of the paper-writing originally offered for probate. In re Marks' Will, 259 N.C. 326, 130 S.E.2d 673 (1963).

Separation Agreement As Renunciation. - Where a husband executes a will devising and bequeathing all his property to his wife, the spouses thereafter enter a separation agreement in which each "waives and renounces all rights . . . under any previously executed will of the other," and the husband subsequently dies without having revoked or modified his will, the separation agreement constitutes a valid renunciation which adeems the devise and bequest to the wife. Sedberry v. Johnson, 62 N.C. App. 425, 302 S.E.2d 924, cert. denied, 309 N.C. 322, 307 S.E.2d 167 (1983).

Where caveators could not produce the revocatory writing, and where the decedent's attorney could not recall writing the will, the trial court erred in granting the caveators summary judgment on the ground that the will revoked an earlier will that had excluded the caveators as beneficiaries. In re Will of McCauley, 356 N.C. 91, 565 S.E.2d 88 (2002).

Caveators alleged a second will, the original of which was lost, revoked the testator's earlier will under G.S. 31-5.1; pursuant to G.S. 1A-1-42, the trial court did not abuse its discretion by trifurcating the case on three issues: (1) the validity of the earlier will; (2) whether the testator destroyed the later will; and (3) the validity of the later will, as these issues were separate, distinct, and compartmentalized. In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65 (2006).

Trial court properly found insufficient evidence to support caveator's request for a jury instruction on revocation because there was no case precedent where a later-dated letter making no specific reference to a prior will, but merely declaring that the testator had "not written a will," was considered to be a revocation of a prior will. In re Estate of Lowe, 156 N.C. App. 616, 577 S.E.2d 315 (2003).

When Intent Issue is for Jury. - Although the evidence, when viewed in a light most favorable to the nonmoving parties, clearly indicated that the will, including the handwritten provisions, was found among the testator's valuable papers and effects, that the handwritten notation evinced a clear intent regarding the desired disposition for the items contained in Article IV, and that those words explicitly showed that the will should be modified to eliminate Article IV, summary judgment was inappropriate because the phrase in the holographic codicil "begin[n]ing 7-7-03" was sufficiently ambiguous to create a genuine issue of material fact as to whether that provision indicated the required present testamentary intent. In re Will of Allen, 371 N.C. 665, 821 S.E.2d 396 (2018).

III. PHYSICAL DESTRUCTION.

.

Editor's Note. - Some of the cases cited below construe former G.S. 31-5.

Defacing, Cancellation or Obliteration Alone Insufficient to Show Revocation. - A paper-writing duly executed as a last will and testament was not revoked, in whole or in part, by defacing, cancellation, or obliteration, unless the testatrix defaced or obliterated the paper-writing, or some portion or portions thereof with the intent thereby to revoke it in whole or in part. Defacement or obliteration, even though shown to be made by testatrix, is not, alone, sufficient to show revocation. In re Will of Hodgin, 10 N.C. App. 492, 179 S.E.2d 126 (1971).

Material Alteration by Cancellation Necessary. - In order for there to be a revocation of a will, in whole or in part, under the provisions of this section there must not only exist the intent of the testator to cancel, but there must be the physical act of cancellation; and while it is not required that the words should be entirely effaced where the cancellation is in part, so as to make the same illegible, the portion erased must be of such significance as to effect a material alteration in the meaning of the will or the clause of the will that is challenged on the issue. In re Love's Will, 186 N.C. 714, 120 S.E. 479 (1923).

Primary Controlling Clause Unaltered, Effect. - Where the primary or controlling clause of a will remains unaltered by the obliteration by the testator of words therein and the unobliterated words remaining are sufficient to carry the designated property to the devisee, it will not amount to a revocation within the intent and meaning of this section; nor will the obliteration of the name of another beneficiary be sufficient as to him, when it appears that the intent of the revocation by the testator was dependent upon the successful revocation of a principal devise wherein the erasures were insufficient to effectuate a legal cancellation. In re Love's Will, 186 N.C. 714, 120 S.E. 479 (1923).

Interlineations and Annotations Held Insufficient to Show Revocation. - Where testator, in his own handwriting, makes certain interlineations and annotations upon his will, which had been properly executed, and marks through certain words of the will, and it appears that such alterations are insufficient to constitute a holographic will and were made with the intent of altering the will at some future date in accordance with the notations, but that such alterations were not made with the intent to revoke the will in whole or in part, such interlineations and annotations are insufficient to show a revocation of the will, intent to revoke being essential to revocation by defacement or obliteration of the will by testator under this section. In re Will of Roediger, 209 N.C. 470, 184 S.E. 74 (1936).

Presumption of Revocation Where Will Cannot Be Found. - It being shown that a will was once in existence and last heard of in possession of the testator, but could not be found after his death, a presumption arises that it was destroyed by his consent with intent to cancel it. Such presumption is not conclusive, but it imposes upon the person asserting the will the burden of proving that it was not so destroyed, or that the testator was not of sound mind at the time of such presumed destruction. Scoggins v. Turner, 98 N.C. 135, 3 S.E. 719 (1887).

Presumption of Revocation Rebutted. - Caveators alleged a second will, the original of which was lost, revoked the testator's earlier will pursuant to G.S. 31-5.1, as they presented evidence that the testator was not responsible for the loss of the later will, and they rebutted the presumption that it was destroyed; therefore, the trial court erred in granting the propounder of the first will a directed verdict under G.S. 1A-1-50. In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65 (2006).

I. GENERAL CONSIDERATION.

The purpose of a caveat is to determine whether the paper-writing purporting to be a will is in fact the last will and testament of the person for whom it is propounded. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

Filing of a caveat is the customary and statutory procedure for an attack upon the testamentary value of a paper-writing which has been admitted by the clerk of superior court to probate in common form. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

Questions as to the construction of a will may be brought in a declaratory judgment action; however, there are limitations to the use of a declaratory judgment action. Thus, a caveat proceeding and not declaratory judgment was appropriate to determine the validity of document. Rogel v. Johnson, 114 N.C. App. 239, 441 S.E.2d 558, cert. denied, 336 N.C. 609, 447 S.E.2d 401 (1994).

Statute Gives Right and Outlines Procedure. - In this jurisdiction the right to contest a will by caveat is given by statute; and the procedure to be followed is outlined in the statute conferring the right. In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555 (1948).

Section Strictly Construed. - This section permitting caveats is in derogation of the common law and must be strictly construed. In re Will of Winborne, 231 N.C. 463, 57 S.E.2d 795 (1950).

Superior Court Acquires No Jurisdiction When Purported Caveat Is Fatally Defective from Inception. - Although it is often stated that, when a caveat is filed superior court acquires jurisdiction of whole matter in controversy, such a pronouncement does not alter affirmative statutory requirement that caveat proceedings can only be instituted by due filing of cause before clerk of superior court. When purported caveat is fatally defective from its inception, superior court acquires no jurisdiction over cause. Casstevens v. Wagoner, 99 N.C. App. 337, 392 S.E.2d 776 (1990).

Issue Is Devisavit Vel Non. - Often the issue devisavit vel non is subdivided, according to the angle or nature of the attack, into ancillary issues, the most common of which are those relating to undue influence and testamentary capacity; but every caveat to a will leads to the simple inquiry devisavit vel non, and the rules of procedure are framed with reference to that feature. In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555 (1948).

Contest Is a Special Proceeding In Rem. - The contest of a will by caveat is not an ordinary civil action, but a special proceeding in rem leading to the establishment of the will as a testamentary act under the issue devisavit vel non. The in rem nature of the proceeding dominates the investigation, and in many important respects the parties litigant have little of the usual control over the course of trial on the issue. In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555 (1948). See In re Will of Westfeldt, 188 N.C. 702, 125 S.E. 531 (1924).

Upon the filing of the caveat, the proceeding is transferred to the civil issue docket for trial before a jury. Upon this transfer, notice is given to all interested persons of the challenge, giving them an opportunity to enter and participate in the proceedings to the end that the court may determine whether the decedent left a will and, if so, whether any of the scripts before the court is the will. The proceeding is in rem, in which the court pronounces its judgment as to whether the res, i.e., the script itself, is the will of the deceased. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965).

A caveat is an in rem proceeding, perhaps more strictly so regarded than any other proceeding with which the courts deal. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

The rules peculiar to a caveat stem from the in rem nature of the proceeding. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

A proceeding to contest a will is begun by filing a caveat or objection to probate with the clerk of the superior court, who thereupon transfers the proceeding to the civil issue docket of the superior court to the end that the issue of devisavit vel non may be tried in term by a jury. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950), commented on in 29 N.C.L. Rev. 331 (1951).

Contest of Probate Begun by Caveat. - The proceedings in the matter of the probate of a will is summary and in rem, and the contest of the probate is begun by a caveat under this section. In re Haygood's Will, 101 N.C. 574, 8 S.E. 222 (1888).

When Proceeding in Nature of Caveat Necessary. - Where there is no allegation that the probate of the will was otherwise than in strict accord with the statute, and there is no suggestion that the court was imposed upon or misled, the validity of the will may be attacked only by direct proceeding in the nature of a caveat under this section. In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948), citing In re Little's Will, 187 N.C. 177, 121 S.E. 453 (1924).

It is only by a caveat or proceeding in that nature that the validity of a properly probated will, and one without inherent or fatal defect appearing on its face, may be brought in question. In re Will of Spinks, 7 N.C. App. 417, 173 S.E.2d 1 (1970).

The attack upon a will offered for probate must be direct and by caveat. A collateral attack is not permitted. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965); Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967).

When a paper-writing purporting to be a will is presented to the judge of probate, he takes proof with respect to its execution. If found in order the script is admitted to probate in common form as a will. Thus far the proceeding is ex parte. It stands as the testator's will, and his only will, until challenged and reversed in a proper proceeding before a competent tribunal. The challenge must be by caveat and be heard in the superior court. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965).

Direct Attack by Caveat Held Adequate Remedy. - Where the grounds on which plaintiff sought to establish a constructive trust in property disposed of by her parents' will were equally available as grounds for direct attack on the will by caveat, this right of direct attack by caveat gave plaintiff a full and complete remedy at law, and she was not entitled to equitable relief. Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967).

Offering Another Will in Another Proceeding Is Collateral Attack. - Offering another will for probate in another proceeding is a collateral and not a direct attack. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965).

Any Material Script May Be Presented in Caveat Proceeding. - In a caveat proceeding any interested person may present to the court any script which is material to the issue whether there is a will, and if so, what it is. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965).

Another Purported Will Should Be Offered in Caveat Proceeding. - Any other script purporting to be the decedent's will should be offered and its validity determined in the caveat proceeding. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965); In re Will of Burton, 267 N.C. 729, 148 S.E.2d 862 (1966).

Clerk of Superior Court Has Exclusive and Original Jurisdiction. - Upon the clerk of the superior court the statutes of this State confer exclusive and original jurisdiction of proceedings for probate of wills. By this it is meant that the clerk of the superior court has the sole power in the first instance to determine whether a decedent died testate or intestate, and if he died testate, whether the script in dispute is his will. Walters v. Baptist Children's Home of N.C. Inc., 251 N.C. 369, 111 S.E.2d 707 (1959).

When a caveat is filed the superior court acquires jurisdiction of the whole matter in controversy. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965); In re Will of Burton, 267 N.C. 729, 148 S.E.2d 862 (1966).

Scope of Subject Matter Jurisdiction. - Caveat filed by decedent's heirs challenging the validity of the will and codicil whereby decedent left her assets to a university barred a later complaint filed by the heirs to the extent the later filed complaint addressed the same issues as alleged in the caveat. Baars v. Campbell Univ., Inc., 148 N.C. App. 408, 558 S.E.2d 871, cert. denied, 355 N.C. 490, 563 S.E.2d 563 (2002).

Probate in Common Form Is Valid until Set Aside. - The probate of a will in common form is valid until set aside. In re Beauchamp's Will, 146 N.C. 254, 59 S.E. 687 (1907).

When a will is probated in solemn form it cannot be caveated a second time unless or until the verdict and judgment probating the will in solemn form is set aside upon a motion in the original cause; therefore, the will, if it was first probated in common form, still stands as the last will and testament until declared void in a direct proceeding in the nature of a caveat. In re Will of Burton, 267 N.C. 729, 148 S.E.2d 862 (1966).

Good Faith Claimants Are Protected until Probate Attacked. - All persons who claim in good faith under a will which has been duly probated in common form as provided by statute are protected by its provisions, until the probate is attacked by a caveat proceeding instituted as provided by this section. Whitehurst v. Hinton, 209 N.C. 392, 184 S.E. 66 (1936).

Nonsuit Cannot Be Taken. - Once the will is propounded for probate in solemn form the proceeding must go on until the issue devisavit vel non is appropriately answered; and no nonsuit can be taken by the propounders or by the caveators. In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555 (1948). See In re Will of Westfeldt, 188 N.C. 702, 125 S.E. 531 (1924); In re Will of Hine, 228 N.C. 405, 45 S.E.2d 526 (1947).

Because the caveat proceeding is in rem, the proceeding must go on until the issue devisavit vel non is appropriately answered; nonsuit cannot be taken by the propounders or the caveators. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

Propounder Functions as Plaintiff. - It is the propounder, and not the caveator, who functions as a plaintiff in a caveat proceeding. In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, cert. denied, 315 N.C. 185, 337 S.E.2d 859 (1985).

An attack upon the validity of a will must be direct and in the form of a caveat. In re Will of Hester, 320 N.C. 738, 360 S.E.2d 801, cert. denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

The trial court may not exclude from the caveat proceeding consideration of any script offered by an interested party which is relevant to the issue devisavit vel non. However, it does not mandate that the issues relating to all scripts be considered simultaneously. In re Will of Hester, 320 N.C. 738, 360 S.E.2d 801, cert. denied, 321 N.C. 300, 362 S.E.2d 780 (1987).

Burden of Proof. - Although a caveat proceeding is an in rem proceeding without a plaintiff and a defendant as such, it is the propounder who has the initial burden of proof, namely, to prove that the instrument in question was executed with the proper formalities required by law. Once this has been established, the burden shifts to the caveator to show that the execution of the will was procured by undue influence. In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, cert. denied, 315 N.C. 185, 337 S.E.2d 859 (1985).

Although a trial court properly granted summary judgment to an executor where there was no evidence of a lack of testamentary capacity, the trial court erred in finding estoppel and no undue influence; a caveator showed that the caveator would have received a bequest in any event and that there were genuine issues of material fact relating to undue influence. In re Will of Smith, 158 N.C. App. 722, 582 S.E.2d 356 (2003).

Burden of Proof Satisfied. - In a caveat proceeding the propounders satisfied their burden of showing that there was no genuine issue of fact in controversy and that they were entitled to judgment as a matter of law when they submitted caveator's release and renunciation in support of their motion for summary judgment. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, cert. denied, 290 N.C. 308, 225 S.E.2d 832 (1976).

Filing of Caveat as Ground for Modification of Will. - Mere fact that a caveat has been filed, standing alone, is not sufficient ground for modification of the dispositive provisions of a will; the outcome of the litigation must be in doubt to such extent that it is advisable for persons affected to accept the proposed modifications rather than run the risk of the more serious consequences that would result from an adverse verdict. Holt v. Holt, 304 N.C. 137, 282 S.E.2d 784 (1981).

Heirs Not Cited under G.S. 31-33. - The heirs at law of a deceased testator whose will is duly probated and who have no knowledge of proceedings to caveat the will, and who were not cited under the provisions of G.S. 31-33, are not estopped to file a second caveat to the paper-writing, nor bound by the former judgment therein sustaining the validity of the paper-writing propounded. Mills v. Mills, 195 N.C. 595, 143 S.E. 130 (1928).

Where plaintiffs attempted to initiate purported caveat proceedings directly in superior court as part of attack on validity of a deed, trial court had no subject matter jurisdiction to determine will's validity. Casstevens v. Wagoner, 99 N.C. App. 337, 392 S.E.2d 776 (1990).

Mere Allowance, Filing, and Recordation of Foreign Order of Probate Is Insufficient. - A caveat may not be entered to the recordation of an exemplification or authenticated copy of a will and foreign order of probate that has been allowed, filed, and recorded in the office of the clerk, but can only be entered to the probate of such will. In re Will of Lamb, 303 N.C. 452, 279 S.E.2d 781 (1981).

Applied in In re Will of Roediger, 209 N.C. 470, 184 S.E. 74 (1936); In re Will of Peacock, 18 N.C. App. 554, 197 S.E.2d 254 (1973); In re Will of Joyner, 35 N.C. App. 666, 242 S.E.2d 213 (1978); Lash ex rel. Wilson v. Lash, 107 N.C. App. 755, 421 S.E.2d 615 (1992).

Cited in In re Bartlett's Will, 235 N.C. 489, 70 S.E.2d 482 (1952); In re Will of Edgerton, 26 N.C. App. 471, 216 S.E.2d 476 (1975); Mileski v. McConville, 199 N.C. App. 267, 681 S.E.2d 515 (2009); In re Will of Durham, 206 N.C. App. 67, 698 S.E.2d 112 (2010); In re Estate of Pickelsimer, 242 N.C. App. 582, 776 S.E.2d 216 (2015), review denied 781 S.E.2d 290, 2015 N.C. LEXIS 1227 (2015).

II. INTERESTED PERSONS.

This section affords protection to any interested persons who do not receive notice. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

The right to contest the validity of a writing offered for probate or probated in common form is, by this section, limited to "any person entitled under such will or interested in the estate." In re Will of Belvin, 261 N.C. 275, 134 S.E.2d 225 (1964).

This section permits a person in interest to file a caveat to an alleged will offered for probate, and to contest the validity of such alleged will before it has been admitted to probate. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950), commented on in 29 N.C.L. Rev. 331 (1951); Walters v. Baptist Children's Home of N.C. Inc., 251 N.C. 369, 111 S.E.2d 707 (1959); In re Will of Lamb, 303 N.C. 452, 279 S.E.2d 781 (1981).

Any interested person may challenge the will and contest its validity by filing a caveat setting forth the grounds of the challenge. In re Will of Charles, 263 N.C. 411, 139 S.E.2d 588 (1965).

Caveator had standing to contest a will because, (1) whether the caveator's claimed interest was upheld, and whether a later will was held invalid and a prior will upheld, the caveator had standing as an heir-at-law, and (2) a propounder's submission of a prior will did not change the caveator's status or dissolve the court's jurisdiction. In re Estate of Phillips, 251 N.C. App. 99, 795 S.E.2d 273 (2016).

Where a will is probated in common form any interested party may appear and enter a caveat. In re Hedgepeth's Will, 150 N.C. 245, 63 S.E. 1025 (1909); In re Thompson's Will, 178 N.C. 540, 101 S.E. 107 (1919); Whitehurst v. Abbott, 225 N.C. 1, 33 S.E.2d 129 (1945).

Any person who has such a direct, immediate, and legally ascertained pecuniary interest in the devolution of the testator's estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is "a person interested." In re Thompson's Will, 178 N.C. 540, 101 S.E. 107 (1919).

The general rule is that a contestant under this section must have some pecuniary or beneficial interest in the estate that is detrimentally affected by the will. In re Will of Calhoun, 47 N.C. App. 472, 267 S.E.2d 385, cert. denied, 301 N.C. 90, 273 S.E.2d 311 (1980).

Caveators Presented Evidence of Detrimental Affect of Probate. - As caveators presented evidence that they were devisees in a testator's later will, but were not included in his earlier will, they presented sufficient evidence that they would be affected detrimentally by the probate of the earlier will and thus had standing to file a caveat regarding that will under G.S. 31-32. In re Will of McFayden, 179 N.C. App. 595, 635 S.E.2d 65 (2006).

A caveat to a will may be filed only by persons "entitled under such will or interested in the estate." And G.S. 31-33, directing the issue of citations, "to all devisee, legatees, or other parties in interest," does not enlarge the definition of interest given in this section. In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555 (1948).

The right to interfere in a question of probate belongs to a party in interest, which must mean some person whose rights will be affected by the probate of the instrument to the prejudice of the party. In re Thompson's Will, 178 N.C. 540, 101 S.E. 107 (1919). See Armstrong v. Baker, 31 N.C. 109 (1848).

Person Interested Against Will May Both Apply for Probate and File Caveat. - The probate powers of the judiciary afford a complete remedy to a person interested against an alleged will in instances where those interested for the alleged will do not propound it for probate. He may invoke such remedy by the simple expedient of simultaneously applying to the clerk of the superior court having jurisdiction to have the script probated or proved, i.e., tested, and filing a caveat asking that it be declared invalid as a testamentary instrument. Brissie v. Craig, 232 N.C. 701, 62 S.E.2d 330 (1950), commented on in 29 N.C.L. Rev. 331 (1951).

It is immaterial whether those appearing and protesting call themselves interveners, objectors or caveators if they place themselves in opposition to the propounders. By a caveat legal rights are put in stake. In re Will of Rowland, 202 N.C. 373, 162 S.E. 897 (1932); In re Will of Puett, 229 N.C. 8, 47 S.E.2d 488 (1948).

It takes only one interested person to caveat a will under this section, and it becomes the duty of the clerk thereupon to bring in interested persons under G.S. 31-33. When they come in they may align themselves as they will. Bailey v. McLain, 215 N.C. 150, 1 S.E.2d 372 (1939), discussed in 18 N.C.L. Rev. 76.

Purchasers from Heirs May File Caveat. - The purchasers of land from the heirs of the deceased owner "are interested in the estate" within the intent and meaning of this section. In re Thompson's Will, 178 N.C. 540, 101 S.E. 107 (1919).

Beneficiaries under Alleged Prior Will Are Interested. - Caveators who allege they are beneficiaries under a prior will of deceased made at a time when he possessed mental capacity are, if the facts be as alleged, interested in the estate. In re Will of Belvin, 261 N.C. 275, 134 S.E.2d 225 (1964).

Beneficiaries under a prior paper-writing are persons interested within the purview of this section and are entitled to file a caveat to a subsequent instrument probated in common form, notwithstanding they are not heirs of the deceased and are not named as beneficiaries in the writing they seek to nullify. Sigmund Sternberger Found. v. Tannenbaum, 273 N.C. 658, 161 S.E.2d 116 (1968).

Beneficiaries Under Alleged Prior Will Failed to Overcome Presumption of the Revocation of the Prior Will. - Trial court erred by permitting the beneficiaries of the decedent's first will to proceed in a caveat proceeding against the decedent's second will without first rebutting the presumption that they lacked standing to caveat attendant to their production of a mere copy of the first will, as the presumption then existed that the decedent had revoked the first will. In re Will of Barnes, 157 N.C. App. 144, 579 S.E.2d 585, cert. denied., appeal dismissed, 357 N.C. 460, 586 S.E.2d 95 (2003).

Executor. - A named executor is not a person interested in the event of the caveat proceeding within the meaning of the dead man's statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

Membership in Congregation. - Membership in a church congregation, albeit distinguished membership, is too tenuous an interest to come within the meaning of the dead man's statute. In re Will of Hester, 84 N.C. App. 585, 353 S.E.2d 643, rev'd on other grounds, 320 N.C. 738, 360 S.E.2d 801 (1987).

Inadequacy of Relief Through Caveat Proceeding Entitled Decedent's Step-grandchildren to Proceed on Tort Claim. - Superior court erroneously dismissed a claim filed by two of decedent's step-grandchildren that defendants, two of the decedent's other step-grandchildren, maliciously caused their step-grandmother to execute a will that left them only nominal bequests, as: (1) the movant step-grandchildren would not be able to obtain adequate relief through a caveat proceeding; and (2) it did not appear that the step-grandchildren could not prove a set of facts supporting their claim which would entitle them to relief. Murrow v. Henson, 172 N.C. App. 792, 616 S.E.2d 664 (2005).

III. TIME LIMIT.

.

Purpose. - By this section, the legislature recognized that it is against the sound public policy to allow probate of wills and settlements of property rights thereunder to be left open to uncertainties for an indefinite length of time. In re Will of Johnson, 182 N.C. 522, 109 S.E. 373 (1921).

Time Limitation Is Substantive. - The time limitation contained in this section has been held to be a "substantive" limitation on the right of action. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387 (1980).

When Probate May Be Caveated. - The probate of a will in common form, being an ex parte proceeding on application of the propounder, may be caveated at the time of application for probate or at any time within seven (now three) years thereafter by "any person entitled under such will, or interested in the estate." In re Ellis' Will, 235 N.C. 27, 69 S.E.2d 25 (1952).

Prior to the 1907 amendment there was no express period of limitation upon the right to file a caveat to the probate of a will, but it was judicially recognized that the right might be lost by unreasonable delay. Gray v. Maer, 20 N.C. 41 (1838); Etheridge v. Corprew, 48 N.C. 14 (1855); In re Beauchamp's Will, 146 N.C. 254, 59 S.E. 687 (1907); In re Hedgepeth's Will, 150 N.C. 245, 63 S.E. 1025 (1909); In re Dupree, 163 N.C. 256, 79 S.E. 611 (1913); In re Bateman's Will, 168 N.C. 234, 84 S.E. 272 (1915); In re Witherington's Will, 186 N.C. 152, 119 S.E. 11 (1923).

Will Probated Over 125 Years Ago. - Even if the court were to find a valid fraud claim or sufficient state action to support a 42 U.S.C.S. § 1983 claim, the statute of limitations barred plaintiffs' claims, as plaintiffs were objecting to transfers made under a will probated over 125 years ago. Majeed v. North Carolina, 520 F. Supp. 2d 720 (E.D.N.C. Oct. 4, 2007).

Only Extrinsic Fraud Tolls Period of Limitation. - The general rule is that when a statute creating the right to contest a will and imposing a limitation of time therefor is construed as affixing an inseparable condition to the exercise of the right, that period so limited will not be tolled by fraud other than extrinsic fraud which would vitiate the probate proceeding. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387 (1980).

A contest not timely instituted based on other than extrinsic fraud is wholly barred although by reason of the wrongful conduct of the propounder, the contestants were not apprised of the situation soon enough to comply with the limitation requirement. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387 (1980).

Intrinsic and Extrinsic Fraud Distinguished. - The question of fraud in obtaining the execution of a will, undue influence, forgery, and the like may be submitted to the probate court in a direct attack on the will by caveat. Fraud of this nature is intrinsic fraud. Extrinsic fraud, on the other hand, relates to the manner in which the judgment is procured. It must relate to matters not in issue and prevent a real contest in the trial. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387 (1980).

Question of Whether Cause Barred as Matter of Law. - While ordinarily whether a cause is barred by the apposite statute of limitations is a mixed question of law and fact, where the facts are admitted or established, the question of the bar of the applicable statute pleaded becomes a question of law, and when such facts disclose that the action is barred the court may sustain the plea and dismiss the action. In re Evans, 46 N.C. App. 72, 264 S.E.2d 387 (1980).

Condition Not Subject to Waiver. - The requirement that caveat proceedings be instituted within seven (now three) years from the probate of the will in common form is a condition attached to the right to file caveat and may not be waived by the parties. In re Will of Winborne, 231 N.C. 463, 57 S.E.2d 795 (1950).

Attack on Will for Vagueness and Uncertainty. - A will is not subject to caveat or collateral attack 27 years after it has been probated in common form; but if the will is void for vagueness and uncertainty it is a nullity and may be attacked directly or collaterally or treated as ineffective, anywhere at any time. Burchett v. Mason, 233 N.C. 306, 63 S.E.2d 634 (1951).

Caveat in Spite of Outstanding Life Estate. - One who is authorized by law to caveat a will is not required to await the falling-in of an outstanding life estate, and such time is not excluded from the computation of period limited in which a caveat to a will may be filed. In re Will of Witherington, 186 N.C. 152, 119 S.E. 11 (1923).

Application to Clerk within Time No Excuse for Delay. - Where parties seeking to caveat a will have forfeited their right to do so by unreasonable delay and acquiescence, the mere fact that they had applied several times when their rights would have been allowed, and the clerk declined and refused to entertain the application because the parties failed to give a proper bond as required by law, does not affect the result, for no caveat is properly constituted until the statutory requirements are met; and if it had been so constituted, the absence of notice issued in reasonable time works a discontinuance. In re Dupree, 163 N.C. 256, 79 S.E. 611 (1913).

Married Women. - Since the enactment of statutes fully emancipating a feme covert from her disabilities, the provisions of this section barring the right to caveat a will after seven years (now three years) with certain exceptions, apply equally to her. In re Will of Witherington, 186 N.C. 152, 119 S.E. 11 (1923).

I. GENERAL CONSIDERATION.

Section Changes Common-Law Rule. - The common-law rule that a devise without words of perpetuity or limitation conveyed a life estate only unless there is a manifest intention to convey the fee has been changed by this section. Henderson v. Western Carolina Power Co., 200 N.C. 443, 157 S.E. 425 (1931).

The purpose of this section was to change the common-law rule that a devise of lands without words of perpetuity conveyed a life estate only unless there was a manifest intention to convey the fee. Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298 (1957); Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960).

This section merely changed the common-law rule that a devise without words of perpetuity or limitation conveyed a life estate only. Thompson v. Ward, 36 N.C. App. 593, 244 S.E.2d 485, cert. denied, 295 N.C. 556, 248 S.E.2d 735 (1978).

Section is similar to G.S. 39-1 pertaining to deeds. Hence, what has been held in applying the rule of construction as to wills is pertinent in applying the rule of construction as to deeds. Artis v. Artis, 228 N.C. 754, 47 S.E.2d 228 (1948). See Vickers v. Leigh, 104 N.C. 248, 10 S.E. 308 (1889).

Section Applies to Real and Personal Property. - The provisions of this section apply to the disposition by will of both personal and real property. Worsley v. Worsley, 260 N.C. 259, 132 S.E.2d 579 (1963); YWCA v. Morgan, 281 N.C. 485, 189 S.E.2d 169 (1972).

The presumption created by this section by its own terms may be overcome by a showing that the will plainly intended to convey an estate of less dignity. Adcock v. Perry, 305 N.C. 625, 290 S.E.2d 608 (1982).

Statutory Presumption of Giving Estate to Spouse Overcome. - Where testator, after devising his wife a life estate in his realty with remainder over to his children, bequeathed his wife "all or so much of my personal property . . . as she may desire to have and to use or dispose of during her lifetime," and directed that all personal property not so sold or disposed of should be divided among his children, the residuary legatees, it was held that the expressed intent of the testator negatived the statutory presumption that he gave his personal estate unconditionally to his wife. Worsley v. Worsley, 260 N.C. 259, 132 S.E.2d 579 (1963).

Intent of Testator as to Realty. - The presumption established by this section that a devise of land shall be construed in fee, etc., gives way to the intent of the testator as gathered from the proper construction of the instrument as a related whole. Roberts v. Saunders, 192 N.C. 191, 134 S.E. 451 (1926).

A general devise of realty does not pass the fee when it clearly appears from the will that the testator intended to convey an estate of less dignity. Hampton v. West, 212 N.C. 315, 193 S.E. 290 (1937); Strickland v. Johnson, 213 N.C. 581, 197 S.E. 193 (1938).

The rule that a devise of the "use of" property is the equivalent of a devise in fee . . . has no application when a will shows an intent to pass an interest that is less than a fee. Cassada v. Cassada, 103 N.C. App. 129, 404 S.E.2d 491, cert. denied, 329 N.C. 786, 408 S.E.2d 516 (1991).

Unrestricted Devise Passes Fee. - It has been uniformly held, since the passage of this statute in 1784, that an unrestricted devise of real estate passes the fee. Roane v. Robinson, 189 N.C. 628, 127 S.E. 626 (1925); Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838 (1927); Bell v. Gillam, 200 N.C. 411, 157 S.E. 60 (1931); Stephens v. Clark, 211 N.C. 84, 189 S.E. 191 (1937); Strickland v. Johnson, 213 N.C. 581, 197 S.E. 193 (1938).

An unrestricted devise of realty, nothing else appearing, constitutes a devise in fee. Elder v. Johnston, 227 N.C. 592, 42 S.E.2d 904 (1947).

An unrestricted or indefinite devise of real property is regarded as a devise in fee simple. Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871 (1981), rev'd on other grounds, 305 N.C. 625, 290 S.E.2d 608 (1982).

A devise generally or indefinitely with power of disposition creates a fee. But a devise for life with power of disposition creates a life estate only. Hardee v. Rivers, 228 N.C. 66, 44 S.E.2d 476 (1947).

Unless a will contains plain and express language, showing that the testator did not intend to devise a fee, the devise will be construed as one in fee simple. Basnight v. Dill, 256 N.C. 474, 124 S.E.2d 159 (1962); Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871 (1981), rev'd on other grounds, 305 N.C. 625, 290 S.E.2d 608 (1982).

No technical words of conveyance are required in wills. Alston v. Davis, 118 N.C. 202, 24 S.E. 15 (1896); Keith v. Scales, 124 N.C. 497, 32 S.E. 809 (1899).

Words of Perpetuity Not Required to Create Fee. - Since this section no words of perpetuity are required and a devise without them will carry the fee unless it appears from the will the testator intended to convey an estate less than the fee. Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298 (1957).

Applied in Morris v. Waggoner, 209 N.C. 183, 183 S.E. 353 (1936); Blackwood v. Blackwood, 237 N.C. 726, 76 S.E.2d 122 (1953); Walters v. Baptist Children's Home of N.C. Inc., 251 N.C. 369, 111 S.E.2d 707 (1959); Poindexter v. Wachovia Bank & Trust Co., 258 N.C. 371, 128 S.E.2d 867 (1963); Keener v. Korn, 46 N.C. App. 214, 264 S.E.2d 829 (1980).

Cited in West v. Murphy, 197 N.C. 488, 149 S.E. 731 (1929); Brown v. Lewis, 197 N.C. 704, 150 S.E. 328 (1929); Merritt v. Inscoe, 212 N.C. 526, 193 S.E. 714 (1937); Early v. Tayloe, 219 N.C. 363, 13 S.E.2d 609 (1941); Perry v. Bassenger, 219 N.C. 838, 15 S.E.2d 365 (1941); Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205 (1950); Wells v. Planters Nat'l Bank & Trust Co., 265 N.C. 98, 143 S.E.2d 217 (1965); Olive v. Biggs, 276 N.C. 445, 173 S.E.2d 301 (1970); Welch v. Schmidt, 62 N.C. App. 85, 302 S.E.2d 10 (1983); Brinkley v. Day, 88 N.C. App. 101, 362 S.E.2d 587 (1987).

II. RULES OF CONSTRUCTION.

Intention of Testator. - The testator's intent gathered from the entire will controls its interpretation. This rule applies to the construction of this section when it appears that the testator devised certain lands without the words of inheritance, and that his intent, gathered from a separate item of the will, was to create a defeasible estate in the first taker, contingent upon his dying at any time, whether before or after the death of the testator, leaving issue surviving him. Rees v. Williams, 165 N.C. 201, 81 S.E. 286 (1914).

The intent of the testatrix is her will and must be carried out unless some rule of law forbids it. In re Will of Wilson, 260 N.C. 482, 133 S.E.2d 189 (1963).

The basic rule of construction, and the refrain of every opinion which seeks to comprehend a testamentary plan, is that the intent of the testator is the polar star that must guide the courts in the interpretation of a will. In re Will of Wilson, 260 N.C. 482, 133 S.E.2d 189 (1963).

The rule, that an unrestricted or general devise of real property, to which is affixed, either specifically or by implication, an unlimited power of disposition in the first taker, conveys the fee and a subsequent clause in the will purporting to dispose of what remains at his death is not allowed to defeat the devise nor limit it to a life estate, as well as all rules of construction, must yield to the paramount intent of the testator as gathered from the four corners of the will. Quickel v. Quickel, 261 N.C. 696, 136 S.E.2d 52 (1964).

The rule is elementary that the intention of the testator is the polar star which is to guide in the interpretation of all wills, and, when ascertained, effect will be given to it unless it violates some rule of law, or is contrary to public policy. In ascertaining this intention the language used, and the sense in which it is used by the testator is the primary source of information, as it is the expressed intention of the testator which is sought. Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960); Wing v. Wachovia Bank & Trust Co., 301 N.C. 456, 272 S.E.2d 90 (1980).

The cardinal principle to be followed when construing a will is to give effect to the general intent of the testator as that intent appears from a consideration of the entire instrument. Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871 (1981), rev'd on other grounds, 305 N.C. 625, 290 S.E.2d 608 (1982).

Primary object in interpreting a will is to give effect to the intention of the testator. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Presumption Against Intestacy. - It is a long-standing policy of the State of North Carolina to construe a will with the presumption that the testator did not intend to die intestate with respect to any part of his property. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Consideration of Will as Whole. - The intent of the testator must be ascertained from a consideration of the will as a whole and not merely from consideration of specific items or phrases of the will in isolation. Adcock v. Perry, 52 N.C. App. 724, 279 S.E.2d 871 (1981), rev'd on other grounds, 305 N.C. 625, 290 S.E.2d 608 (1982).

Ordinary Words. - Generally, ordinary words are to be given their usual and ordinary meaning, and technical words are presumed to have been used in a technical sense. Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960).

Words with Well-Defined Legal Significance. - If words or phrases are used which have a well-defined legal significance, established by a line of judicial decisions, they will be presumed to have been used in that sense, in the absence of evidence of a contrary intent. Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960).

Isolated Clauses or Sentences. - Isolated clauses or sentences are not to be considered by themselves, but the will is to be considered as a whole, and its different clauses and provisions examined and compared, so as to ascertain the general plan and purpose of the testator, if there be one. Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960).

Prior Decisions. - Little or no aid can be derived by a court in construing a will from prior decisions in other will cases. It is not sufficient that the same words in substance or even literally have been construed in other cases. It often happens that the same identical words require very different constructions according to context and the peculiar circumstances of each case. Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465 (1960).

General Interest Prevails over a Particular Interest. - The provisions of this section, while laying down a rule of construction, still leave the question of the intention of the testator open for construction, and where there is a particular and a general paramount interest apparent in the same will, and they clash, the general interest must prevail. Leeper v. Neagle, 94 N.C. 338 (1886).

III. ILLUSTRATIVE CASES.

.

Devise of Use of Property. - Where testatrix only devised the "use of" the property so long as the beneficiaries "wish to live there," she "in plain and express words" showed an intent to devise less than the fee. While the courts have held that the devise of the "use of" property is the equivalent of a devise in fee, the rule has no application, when the will shows an intent to pass an interest that is less than a fee. Thompson v. Ward, 36 N.C. App. 593, 244 S.E.2d 485, cert. denied, 295 N.C. 556, 248 S.E.2d 735 (1978).

Gift of Personalty with Full Power to Use Is Absolute. - Where there is no residuary clause in the will and no limitation over so far as the personal property is concerned, a gift of personal property for life to the primary object of testator's bounty, with power to use "in any way that she may desire" is generally construed to be an absolute gift of the property. Worsley v. Worsley, 260 N.C. 259, 132 S.E.2d 579 (1963).

Testator devised to his daughters, B and M, all of his real estate after the death of his widow, and also to his daughter T an equal life interest therein with B and M, "or so long as the said T may remain a widow." Upon the death of the testator's widow, B and M took in remainder a fee simple estate, the intent of the testator being to provide for T, who remained unmarried and is now deceased, during her widowhood. Barbee v. Thompson, 194 N.C. 411, 139 S.E. 838 (1927).

The clause "I give, devise and bequeath" to named devisee, described realty, standing alone, constitutes a devise in fee simple. Buckner v. Hawkins, 230 N.C. 99, 52 S.E.2d 16 (1949).

The words "give, devise and bequeath," used by a testatrix in devising her property to a husband and wife as tenants by the entireties, in light of the provisions of this section, gave them a fee simple title to the devised property. Basnight v. Dill, 256 N.C. 474, 124 S.E.2d 159 (1962).

A devise of real estate to devisees "to do as they like with it," with subsequent provision that after their death whatever property is left should go to testatrix' niece, vests the fee simple in the beneficiaries first named. Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368 (1947).

A devise generally to one person with limitation over to another of "whatever is left" at the death of the first taker is regarded as a devise in fee simple. Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368 (1947), citing Patrick v. Morehead, 85 N.C. 62, 39 Am. Rep. 684 (1881); Carroll v. Herring, 180 N.C. 369, 104 S.E. 892 (1920).

"Cash." - The word "cash" is not such a technical one that it will have the same definite and precise meaning in all circumstances. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164 (1991), aff'd, 331 N.C. 111, 413 S.E.2d 797 (1992).

The word "cash" as used in a will includes bank accounts, both checking and savings and includes certificates of deposit. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164 (1991), aff'd, 331 N.C. 111, 413 S.E.2d 797 (1992).

Use of the words "other cash," as used in a will, will not be interpreted by resorting to a narrow, technical definition or interpretation. Courts must look for the meaning of these words according to the subject treated and the context in which they were used. The intention of the testator is the polar star which must guide the courts in the interpretation of wills. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164 (1991), aff'd, 331 N.C. 111, 413 S.E.2d 797 (1992).

"Remaining cash and bonds" included certificates of deposit. Barnes v. Evans, 102 N.C. App. 428, 402 S.E.2d 164 (1991), aff'd, 331 N.C. 111, 413 S.E.2d 797 (1992).

Devise with Full Power of Disposal. - A devise to a husband with full power of disposal, but on certain conditions any part undisposed of by him to go to a nephew, vests a fee simple in the husband. Roane v. Robinson, 189 N.C. 628, 127 S.E. 626 (1925); Heefner v. Thornton, 216 N.C. 702, 6 S.E.2d 506 (1940).

A devise of real estate to testator's son for his own use and benefit with the expressed intent that it should vest in him absolutely with full right to dispose of it, with limitation over should he die without children surviving, if not disposed of by him during his life, gives the devisee a fee simple title. Lineberger v. Phillips, 198 N.C. 661, 153 S.E. 118 (1930).

A will devising to wife all of testator's property, with full power to manage, control, sell and dispose of it at her discretion, also provided that it was the testator's will and desire that she should devise whatever property she had not thus disposed of during her natural life, or the proceeds thereof, to the person who had been the "kindest to us in aiding and comforting us in our old age." It was held that the wife acquired a fee simple title. Weaver v. Kirby, 186 N.C. 387, 119 S.E. 564 (1923).

Devise with Limited Power of Disposal. - A general devise to testator's wife with subsequent items providing that one half the estate "remaining" at her death should go to his adopted son in fee, and the other half, in the event the wife did not dispose of the residue of the estate by will, to go to the children of L, is held to show an intent to convey an estate of less dignity than a fee simple to testator's wife, rebutting the presumption that the general devise to the wife should be construed to be in fee, the power of disposition of part of the estate, at least, being limited to disposition by will, and the widow does not have the power to convey the entire estate by deed in fee simple. Hampton v. West, 212 N.C. 315, 193 S.E. 290 (1937).

Devise with Power of Disposition Neither Expressed Nor Implied. - Where the gift to the first taker is in language sufficient, standing alone, to pass a fee simple estate, but no absolute power of disposition is expressed or necessarily implied, the gift is a life estate, provided from other clauses of the will it appears that, at the death of the first taker, testator intends and directs a limitation over to another or others. Andrews v. Andrews, 253 N.C. 139, 116 S.E.2d 436 (1960).

Devise for Life with Remainder to Heirs. - When a devise is to a named person for life with remainder after his death to "his heirs" or "his bodily heirs" or the "heirs of his body," nothing else appearing, the devisee becomes seized of a fee simple estate upon the death of the testator subject to any prior life estate created by the will. Hammer v. Brantley, 244 N.C. 71, 92 S.E.2d 424 (1956).

Devise Vesting Fee in Children. - A devise of land with provision that the rents should be used by testator's wife and children until they should become of age, and that the lands should be divided among them all upon the children coming of age or upon the prior death of the widow, with further provision that they should have no right to sell the lands except to each other, was held upon the death of the widow, to vest in fee simple in the children. Langston v. Wooten, 232 N.C. 124, 59 S.E.2d 605 (1950).

A devise to testator's wife of all of this estate absolutely as he held it himself, declaring that she should not be considered as holding it in trust "technically so called, to be enforced by the judge or decree of any court other than her own conscience, judgment, and affection shall prompt her to so regard it," was in fee absolute. Fellowes v. Durfey, 163 N.C. 305, 79 S.E. 621 (1913).

Devise of Proceeds of Land. - Under this section the fee generally passes upon a devise of the proceeds of land when an intention to separate the income from the principal is not expressed, or where the devise is general and the devisee is given the power of disposition, or a limitation over is made of such part as may not be disposed of by the first taker. Hambright v. Carroll, 204 N.C. 496, 168 S.E. 817 (1933).

Devise with Power of Appointment. - A devise to A, and to such persons as he shall appoint, vests the absolute property in A, without an appointment. But if it be to him for life and after his death to such person as he shall appoint, he must make an appointment in order to entitle that person to anything. The express life estate to him repels the implication of a fee simple for himself. Levy v. Griffis, 65 N.C. 236 (1871).

A devise to a trustee in trust for the sole and separate use of a married woman with a power given to her of appointing the estate in fee by deed or will, will vest the trust in her in fee under this section. Levy v. Griffis, 65 N.C. 236 (1871).

Estate Tail Converted into Fee Simple. - There was a devise of lands to wife of testator for life, and at her death or remarriage to their two children, by name, for their natural lives for the heirs of their bodies. It was held that, after the death of the widow, the devise was not a trust created in the children as trustees for the "heirs of their bodies," and there being no expression in the will to show an intent to create an estate of less degree than fee, it constituted an estate tail, converted by our statute into a fee simple. Washburn v. Biggerstaff, 195 N.C. 624, 143 S.E. 210 (1928).

There testatrix stated she "wanted" the land in question to go to her brother and at his death to his three sons and his named grandson, with further provision that at their deaths testatrix "wanted" the land to go to their "children & so on," the brother took a life estate with remainder to his children and the named grandson in fee under the rule in Shelley's Case, since it is apparent that testatrix used the word "children" in the sense of an indefinite line of succession and created an estate tail converted into a fee by G.S. 41-1. In re Will of Wilson, 260 N.C. 482, 133 S.E.2d 189 (1963).

Fee Simple Defeasible upon Condition. - Where testator devises realty to grandson, and in the event of death of the latter without children, then the land to descend to other grandchildren, such devise vests a fee simple estate in the first devisee, defeasible only on condition that he dies without leaving heirs of his body. Whitfield v. Garris, 131 N.C. 148, 42 S.E. 568 (1902); Whitfield v. Garris, 134 N.C. 24, 45 S.E. 904 (1903).

An estate "loaned" to testator's daughter R during her natural life and at her death "I lend all of the" designated land "to the lawful heirs of her body, and to the lawful begotten heirs of their bodies if any," standing alone, would convey the fee simple title, but with the further expression, "in case she should die leaving no lawful issue of her body then I give all the above described land to my son J, and his lawful heirs," the estate is defeasible in the event of the death of R "leaving no lawful issue of her body." Jarman v. Day, 179 N.C. 318, 102 S.E. 402 (1920).

Language Insufficient to Show Intent to Pass Less Than Fee Simple Estate. - See Mangum v. Wilson, 235 N.C. 353, 70 S.E.2d 19 (1952).

A devise of all testator's property, employing the words "give, devise, and bequeath" and expressing testator's desire that the estates devised and bequeathed be held intact as nearly as practicable, by marriage contract if the devisees married, and at the death of the devisees be divided among nephews and nieces, vested an absolute fee simple title in the named devisees. Humphrey v. Faison, 247 N.C. 127, 100 S.E.2d 524 (1957).

The language "provided, that if she own the property or any part thereof at her death, the same shall descend to the children born of her body, or the heirs of such children" did not show the intestator's intention to convey a life estate. An unrestricted or general devise of real property, to which is affixed, either specifically or by implication, an unlimited power of disposition in the first taker, conveys the fee and a subsequent clause purporting to dispose of what remains at his death is not allowed to defeat the devise or limit it to a life estate. Leonard v. Dillard, 87 N.C. App. 79, 359 S.E.2d 497 (1987); See Osborne v. Hodgin, 98 N.C. App. 111, 389 S.E.2d 629 (1990).

Language Showing Intention to Give Estate in Residuary Devisee of Less Dignity Than Fee Simple. - See Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888 (1951).

Where an estate is reduced from a life estate to a dower interest, in the event of remarriage, it is a manifest indication of the testator's purpose to devise his wife an estate of less dignity than a fee simple. Worsley v. Worsley, 260 N.C. 259, 132 S.E.2d 579 (1963).

Vested Remainder to Be Divested upon Condition. - Under a devise of lands to K "his lifetime, then to go to" G and M, "and if they should die without leaving bodily heirs, then to go to the Flow Heirs," it was held that, after the falling-in of the life estate, G and M take the fee in the remainder defeasible upon their dying without leaving "bodily heirs," in which event it would go to the ultimate devisees, upon the principles of a shifting use operating by way of an executory devise. Kirkman v. Smith, 174 N.C. 603, 94 S.E. 423 (1917).

For precatory words in a will to be regarded as creating a trust in lands devised, the intention of the testator to that effect must clearly appear by interpretation of the instrument, for otherwise these words must be given the ordinary significance of those of that character. Springs v. Springs, 182 N.C. 484, 109 S.E. 839 (1921).

Where the testator, after bequeathing or devising property to a person, expresses a wish or desire as to its use or disposition, such expression will not be construed to create a trust in the legatee or devisee unless it clearly appears from the instrument as a whole that testator so intended since the devise or bequest will be deemed absolute in the absence of a clearly expressed intention to convey an estate of less dignity, but precatory words will create a trust when it appears from the instrument as a whole that the testator so intended, provided testator has pointed out with sufficient clearness and certainty both the subject matter and objects of the intended trust. Brinn v. Brinn, 213 N.C. 282, 195 S.E. 793 (1938).

Subsequent Expressions Not Affecting Devise of Fee. - Where a testator devises all of his estate to his wife, clearly and unmistakably in fee, a different intent may not be inferred from subsequent expressions used in the will. Fellowes v. Durfey, 163 N.C. 305, 79 S.E. 621 (1913).

An unrestricted devise followed by a provision that in the event the devisee died intestate, testator wished such devisee's share to descend to her children, vests the fee in the devisee, the precatory words being repugnant to the estate previously devised and sufficient to limit or divest it. Croom v. Cornelius, 219 N.C. 761, 14 S.E.2d 799 (1941).

In the absence of a contrary intent expressed in the will an unrestricted or indefinite devise of real property is a devise in fee simple, and a subsequent clause expressing a wish, desire or even direction for the disposition of what remains at the death of the devisee will not be allowed to defeat the devise nor limit it to a life estate. Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368 (1947).

Where real estate is devised in fee, or personalty bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. Worsley v. Worsley, 260 N.C. 259, 132 S.E.2d 579 (1963).

An unrestricted or general devise of real property, to which is affixed, either specifically or by implication, an unlimited power of disposition in the first taker, conveys the fee, and a subsequent clause in the will purporting to dispose of what remains at his death is not allowed to defeat the devise nor limit it to a life estate. Quickel v. Quickel, 261 N.C. 696, 136 S.E.2d 52 (1964).

Devise for "Use and Benefit without Let or Hindrance". - Where testator left property in trust with power in his wife to demand that trustee turn over property to her "for her own use and benefit without let or hindrance," upon such demand and compliance therewith, the wife takes and can convey a fee simple, notwithstanding a further provision in the will that a third person should take a life estate in property remaining in the hands of trustees at the wife's death. O'Quinn v. Crane, 189 N.C. 97, 126 S.E. 174 (1925).

Devise to Trustee Granting No Beneficial Interest. - The rule that a devise of real estate shall be construed to be in fee simple is inapplicable where the testamentary words negative the idea of the investiture of title in fee, or for life, or the granting of any other beneficial interest to the devisee, and express the intent, rather, to impose upon him duties as executor and trustee of an active trust, with directions as to the use of the property and as to how the income shall be applied during his life and after his death. Stephens v. Clark, 211 N.C. 84, 189 S.E. 191 (1937).

The construction required by this statute may not be invoked where no estate in fee is attempted to be devised and where the plain intent is not to grant an estate, but to impose a trust and direct the collection of rent for application to a specific purpose. Stephens v. Clark, 211 N.C. 84, 189 S.E. 191 (1937), citing Young v. Young, 68 N.C. 309 (1873); Witherington v. Herring, 140 N.C. 495, 53 S.E. 303, 6 Ann. Cas. 188 (1906); Fellowes v. Durfey, 163 N.C. 305, 79 S.E. 621 (1913).

Devise Creating Life Estate. - Testator devised to his wife all of his "estate real and personal," and by a later paragraph all of the rest of his property "as above stated" during her widowhood, and should she remarry her dower "according to law." It was held that only a life estate was given to his widow, the statutory presumption of a fee simple title being inoperative. Roberts v. Saunders, 192 N.C. 191, 134 S.E. 451 (1926).

A devise for life with power of disposition creates a life estate only. Chewning v. Mason, 158 N.C. 578, 74 S.E. 357 (1912); Tillett v. Nixon, 180 N.C. 195, 104 S.E. 352 (1920); Alexander v. Alexander, 210 N.C. 281, 186 S.E. 319 (1936).

The estate devised being specifically limited to the life of the devisee, the power of disposition does not enlarge the estate devised or convert it into a fee. Hardee v. Rivers, 228 N.C. 66, 44 S.E.2d 476 (1947).

Decedent's unrestricted devise of certain property to plaintiff in Item 2 was a devise in fee simple and the later devise of the property to defendants in Item 7 did not limit plaintiff's estate to a life estate. Coble v. Patterson, 114 N.C. App. 447, 442 S.E.2d 119 (1994).

Void Restraint on Alienation. - Where a restraint on alienation was declared void, the devise was unrestricted and vested the fee in the devisee. Williams v. McPherson, 216 N.C. 565, 5 S.E.2d 830 (1939).

I. GENERAL CONSIDERATION.

Editor's Note. - Some of the cases cited below were decided under this section as it appeared prior to the 1951 amendment and former G.S. 31-42.1 and G.S. 31-42.2.

Legislative Intent. - The legislature did not intend that the issue of a devisee or legatee meeting the conditions of subsection (a) could be substituted for that devisee or legatee as to a specific devise or bequest and not allowed to be similarly substituted if the same devisee or legatee were named as one of the residuary devisees or legatees. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969) (decided under prior law).

Construction. - Subsection (a) of this section is designed and intended to prevent the lapse of a devise or bequest, whether it be specific or residuary, in a situation where the devisee or legatee, who would have taken had he survived the testator, predeceases testator survived by issue who survive the testator and who would have been heirs of testator had there been no will. If this situation does not exist, then the devise or legacy lapses and passes under the provisions of subdivision (c)(1) under the residuary or by intestacy, if there be no residuary. If lapse of a residuary devise or legacy cannot be prevented by application of subsection (a), then under subdivision (c)(2) it continues a part of the residue and passes to the other residuary legatees or devisees, if any. If none, it passes as if testator had died intestate with respect thereto. That this construction manifests the intent of the legislature is further evidenced by the clear language of the statute itself. Subdivision (c)(2) is applicable, with respect to residuary devises or legacies, only where subsection (a) is not applicable. It would follow, that if the legislature had intended to exclude residuary devises and legacies from the operation of subsection (a), it would have specifically limited the section to specific legacies and devises, omitted subdivision (2) from the provisions of subsection (c), and treated residuary devises and legacies in a separate provision of the statute unrelated to any other section. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969); Misenheimer v. Misenheimer, 62 N.C. App. 506, 303 S.E.2d 415 (1983), aff'd, 312 N.C. 692, 325 S.E.2d 195 (1985) (decided under prior law).

Original Section a Copy of English Statute. - This section, as enacted in 1844 was a copy of the English statute upon the same subject. Holton v. Jones, 133 N.C. 399, 45 S.E. 765 (1903).

This section is not ambiguous. The intention of the General Assembly in its enactment of this section is expressed in language which leaves no room for judicial construction. The distinction found in the common law for purposes of devolution is recognized and preserved. Farnell v. Dongan, 207 N.C. 611, 178 S.E. 77 (1935); Beach v. Gladstone, 207 N.C. 876, 178 S.E. 546 (1935).

This section applies to all wills and provides means by which property is to be distributed in the event of failure of devises and legacies by lapse or otherwise. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

This section is applicable to wills of persons dying on or after July 1, 1965. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969) (decided under prior law).

Prior to the 1965 amendment, in a situation where testator gave the residue of his estate to A, B, and C, and A predeceased testator leaving no issue entitled to the property under the antilapse statute. A's share would pass to the heirs of testator as intestate property. After the 1965 amendment the application thereof would result in A's share continuing as a part of the residue for division among the other residuary legatees and devisees. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969) (decided under prior law).

Subsection (a) applies to residuary devises or bequests. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969) (decided under prior law).

Anti-lapse statute did not apply to case regarding distribution of proceeds from annuity contract. Hager v. Lincoln Nat'l Life Ins. Co., 126 N.C. App. 349, 484 S.E.2d 828 (1997).

Limitation Over Held to Lapse. - Where testatrix left property in trust to her son for life with remainder over to his issue, and in the event the son should leave no issue, to testatrix's brothers and sisters, and all except one of testatrix's brothers and sisters predeceased her, and the sister who survived her died during the lifetime of the son, the limitation over to the brothers and sisters of testatrix lapsed, since the children of the brothers and sisters of testatrix who predeceased testatrix did not qualify under this section, and no transmittable estate vested in the sister of testatrix who died during the lifetime of testatrix's son. Poindexter v. Wachovia Bank & Trust Co., 258 N.C. 371, 128 S.E.2d 867 (1963).

Intent to Prevent Lapse. - Should the testator desire to prevent lapse, he must express his intent that the gift not lapse or must provide for substitution of another devisee to receive the gift. In re Hubner, 106 N.C. App. 204, 416 S.E.2d 401, cert. denied, 332 N.C. 148, 419 S.E.2d 572 (1992).

Had testator intended the anti-lapse statute not to apply, he could have very easily shown such contrary intent, and it was not for the court to do that for him. Early v. Bowen, 116 N.C. App. 206, 447 S.E.2d 167 (1994), cert. denied, 339 N.C. 611, 454 S.E.2d 249 (1995), cert. denied, 456 S.E.2d 519 (1995).

Trial court improperly applied the anti-lapse statute, G.S. 31-42(a), to devises in a will to a son who predeceased the testatrix, because an article in the will specifically provided that any lapsed devises were to pass in the testatrix's residuary estate. Colombo v. Stevenson, 150 N.C. App. 163, 563 S.E.2d 591 (2002), aff'd, 357 N.C. 157, 579 S.E.2d 269 (2003).

Decedent's failure to execute a will devising his interest in farmland to his son, which decedent promised to do in a separation agreement, caused his interest in that land to pass to the second wife, and not the minor grandchild after the son predeceased the decedent; accordingly, the trial court should not have granted summary judgment to the estate representative and the second wife because the minor grandchild had an action for specific performance of the agreement, even though he was not named in it, since the property upon the death of the decedent would have passed to the minor grandchild pursuant to G.S. 31-42. Tyndall-Taylor v. Tyndall, 157 N.C. App. 689, 580 S.E.2d 58 (2003).

Intestacy Not Favored. - No one supposes that he has failed in his intention to dispose of all of his property by his will, and the courts should endeavor to make out such an intention and to uphold the testamentary plan, so that the testator may not, as to some of his estate, have died intestate. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916).

Legacy Not Lapsed by Fact That Legatee Predeceased Testator. - A judgment that a legacy did not lapse by reason of fact that legatee predeceased testator was affirmed, it appearing that legatee would have been distributee of testator had she survived him. Beach v. Gladstone, 207 N.C. 876, 178 S.E. 546 (1935).

Lapse Would Cause Impermissible Rewriting of the Will. - To conclude from the survivor language of testator's will that his intent was to favor the children of the brother who lived longest over the children of the brother who died first was an impermissible rewriting of the will rather than a construction of what was contained within the four corners of the document. Early v. Bowen, 116 N.C. App. 206, 447 S.E.2d 167 (1994), cert. denied, 339 N.C. 611, 454 S.E.2d 249 (1995), cert. denied, 456 S.E.2d 519 (1995).

Who Are Distributees. - A distributee is a person who has the right under the statute of distribution to a share in the surplus estate of an intestate; one entitled to take a share of an estate of a decedent, under the statute of distribution; one to whom something has to be distributed in the division of an estate; a person upon whom personal property devolves by act of law in cases of intestacy. The determinative criterion is the right to share in the distribution of the personal estate of the intestate. Those who take by succession the estate of a person who dies intestate are named and defined in G.S. 28-149 (now G.S. 29-1 et seq.). Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150, 48 S.E.2d 41 (1948).

Must Be Determined as of Date of Death of Testatrix. - Who would have been distributees of the estate had the testatrix died intestate must be determined as of the date of her death and not as of the date of the execution of her will. Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150, 48 S.E.2d 41 (1948).

Wife Surviving Testator Not Heir at Law but Distributee. - Where the owner of real and personal property executed a will devising and bequeathing all his property, both real and personal, to his wife, the collateral heirs at law of the testator are entitled to the real property, the devise to the wife having lapsed by reason of her prior death, and the provisions of this section, not applying to prevent such lapse of the devise, since the wife would not have been an heir at law of testator had she survived him, but the children of the wife by a prior marriage are entitled to the personalty, since the wife would have been a distributee of the personal estate of her husband had she survived him, and this section providing that in such case the legacy should not lapse, but should go to the surviving issue of the legatee, the statute clearly recognizing the distinction between real and personal property for the purposes of devolution. Farnell v. Dongan, 207 N.C. 611, 178 S.E. 77 (1935).

Where a wife dies leaving her husband but no issue he is her sole distributee, and her collateral kin are not entitled to share in the estate and are not "distributees." Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150, 48 S.E.2d 41 (1948).

Standing of Adopted Child. - Where a parent by adoption is named a legatee in the will of her mother, but dies prior to the death of her mother, the adopted child takes the personalty bequeathed his mother by adoption under this section, even though the adoption was subsequent to the execution of the will, since under the provisions of G.S. 48-23 the adopted child has the same standing as though he had been born to his adoptive parent at the time of the adoption. Headen v. Jackson, 255 N.C. 157, 120 S.E.2d 598 (1961).

Devise Void for Vagueness of Description. - Where a testator attempted to devise to named devisees separate tracts of land described simply as, first, "my home and 30 acres of land surrounding the same," second, "12 acres of my Plantation located in the Northwest corner of same," and third, "12 acres on the East side of my Plantation," a fourth item which attempted to devise the "remainder of my real estate" constituted an attempted specific devise of a particular tract, rather than a general residuary clause, and, the first three items being void for vagueness of description, the fourth item was also void. Taylor v. Taylor, 45 N.C. App. 449, 263 S.E.2d 351, rev'd on other grounds, 301 N.C. 357, 271 S.E.2d 506 (1980).

A renunciation is not a grant of legal title by the renouncer. It merely triggers a set of statutorily defined legal rights which ultimately determine ownership. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under § 29-10 as it read prior to Oct. 1, 1975.

A renunciation relates back to the death of the testator or intestate. The renouncer never actually holds legal title to the property. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under G.S. 29-10 as it read prior to Oct. 1, 1975.

A parol trust may not be engrafted upon a renounced interest. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under G.S. 29-10 as it read prior to Oct. 1, 1975.

Action Seeking Constructive Trust. - Plaintiff, who sought to assert that defendant unduly influenced his decision to sign a "Petition to Renounce" his interest in will, could maintain an action seeking the declaration of a constructive trust. Hinson v. Hinson, 80 N.C. App. 561, 343 S.E.2d 266 (1986), decided under G.S. 29-10 as it read prior to Oct. 1, 1975.

Estate Passed into Intestacy Where Devise to Predeceased Spouse Lapsed and Will Had No Residuary. - Since the decedent's husband predeceased the decedent, the will's devise to the husband lapsed, and since he was neither a grandparent of nor a descendant of a grandparent of the decedent, and had no issue, G.S. 31-42(b) controlled; where a condition precedent to a beneficiary taking under the decedent's will did not occur and the will had no residuary clause, the estate passed by intestacy. Grant v. Cass, 173 N.C. App. 745, 620 S.E.2d 299 (2005).

Applied in Rape v. Lyerly, 287 N.C. 601, 215 S.E.2d 737 (1975); Forester v. Marler, 31 N.C. App. 84, 228 S.E.2d 646 (1976); Tighe v. Michal, 41 N.C. App. 15, 254 S.E.2d 538 (1979); Taylor v. Taylor, 301 N.C. 357, 271 S.E.2d 506 (1980); North Carolina Nat'l Bank v. Apple, 95 N.C. App. 606, 383 S.E.2d 438 (1989).

Cited in Rodman v. Rodman, 21 N.C. App. 397, 204 S.E.2d 695 (1974); Adcock v. Perry, 305 N.C. 625, 290 S.E.2d 608 (1982); Betts v. Parrish, 62 N.C. App. 77, 302 S.E.2d 288 (1983); McMillan v. Davis, 81 N.C. App. 433, 344 S.E.2d 595 (1986); In re Estate of Baumann, 93 N.C. App. 782, 379 S.E.2d 107 (1989); Lewis v. Ecklin, 110 N.C. App. 73, 428 S.E.2d 855 (1993).

II. PROPERTY PASSING UNDER RESIDUARY CLAUSE.

Editor's Note. - Some of the cases cited below were decided under this section as it appeared prior to the 1951 amendment and former G.S. 31-42.1 and G.S. 31-42.2.

Residuary Clause Comprises All Property Not Otherwise Provided for. - It was intended by this section that the property passing by residuary clause of a will should comprise all the estate owned by the testator at time of his death not otherwise specifically devised or provided for, and should include any described in a devise which may have lapsed, or become void or incapable of taking effect. Renn v. Williams, 233 N.C. 490, 64 S.E.2d 437 (1951).

Construction of Residuary Clause in General. - In a residuary gift large enough in its language to comprehend residue, the question is, not what is included, but what is excluded; and one must find words sufficiently large, definite and distinct to enable him to say that some item is excluded, so that what hitherto has purported to be the residuary gift is reduced to the level of a specific gift, and ceases to be a residuary gift. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916).

No particular mode of expression is needed to constitute a residuary clause. All that is required is an adequate indication that a particular clause was intended to dispose of property which was not otherwise disposed of by the will. Betts v. Parrish, 312 N.C. 47, 320 S.E.2d 662 (1984).

Construction to Prevent Intestacy. - A residuary clause in a will should be construed so as to prevent an intestacy as to any part of the testator's estate, unless there is an apparent intent to the contrary, plainly and unequivocally expressed in the writing. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916).

It is a general rule always to construe a residuary clause so as to prevent an intestacy as regards any part of the testator's estate, unless there is an apparent intention to the contrary. Betts v. Parrish, 312 N.C. 47, 320 S.E.2d 662 (1984).

When the language of the will is definite and clear, the presumption that the will must be construed to prevent partial intestacy is generally not employed. If the language is unambiguous, then there is no need to resort to a construction of the will, and the expression of the testator must be given effect. Betts v. Parrish, 312 N.C. 47, 320 S.E.2d 662 (1984).

Applicability of Former Subdivision (c)(1)a. - Where it was clear from the residuary clause itself or other parts of the will, that the testator had in fact a contrary intention, namely, that the residue should not be general, and that things given away should not fall into the residue, subdivision (c)(1)a did not apply. Betts v. Parrish, 312 N.C. 47, 320 S.E.2d 662 (1984) (decided under prior law).

Applicability of Former Subdivision (c)(2). - Former subdivision (c)(2) of this section was applicable only where there were other residuary devisees or legatees named in the will who survived the testator. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969) (decided under prior law).

Subject Matter of Void Legacy Included in Residuary Legacy. - A legacy which is void under the terms of G.S. 31-10, which makes those legacies whose beneficiaries were attesting witnesses to the will void, passes under the residuary clause of the will. Renn v. Williams, 233 N.C. 490, 64 S.E.2d 437 (1951).

Rule as to Residuary Clause Applies Only in Absence of Contrary Intention. - A lapsed devise of lands will not fall within the residuary clause of a will, under this section, where a contrary intent appears from the construction of a will itself; and where the testator has specifically devised his lands, making ample provisions for his widow, and gives her, in the residuary clause, "all other property not herein specified," and the use of the word "property," with the expression "not herein specified," shows the testator's intent that a lapsed devise of the realty should not fall within the residuary clause, but will go to the testator's next of kin instead of those of the widow or her devisees under her will. Howell v. Mehegan, 174 N.C. 64, 93 S.W. 438 (1917).

If the will expresses an intent that a legacy shall not lapse in the event the legatee predeceases testatrix, the statutory provision for lapse does not apply. This intent need not be stated in exact terms, but is to be ascertained from the four corners of the will. Wachovia Bank & Trust Co. v. Shelton, 229 N.C. 150, 48 S.E.2d 41 (1948), wherein will showed no intent that legacy should not lapse upon prior death of legatee.

No particular mode of expression is necessary to constitute a residuary clause in a will, and while the words "rest," "residue," or "remainder" are commonly used for the purpose, naturally placed at the end of the dispositive portion of the will, all that is required is an adequate designation of what has not been otherwise disposed of; and the fact that a provision so operating is not spoken of in the will as the residuary clause is immaterial. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916); Barnacascel v. Spivey, 11 N.C. App. 269, 181 S.E.2d 151 (1971).

Dependent upon the Intention of the Testator. - Whether a clause is a residuary clause is not dependent upon any particular form of expression but upon the intention of the testator, and where a will provides that after the termination of a life estate that the whole estate should be reduced to cash and, after payment of certain specific bequests, distributed among a specific class, where the legacy of one of the class lapses by the death of the legatee prior to the testator's death, the amount of such legacy is thrown into the fund for distribution among the class named, and it does not go to the next of kin of the legatee. Stevenson v. Wachovia Bank & Trust Co., 202 N.C. 92, 161 S.E. 728 (1932).

"Residuary Devisee." - Residuary devisee is defined as the person named in a will, who is to take all the real property remaining over and above the other devises. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969).

"Residuary Legatee." - Residuary legatee is defined as the person to whom a testator bequeaths the residue of his personal estate, after the payment of such other legacies as are specifically mentioned in the will. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969).

"The Other Residuary Devisees or Legatees, If Any." - This section, by use of the words "the other residuary devisees or legatees, if any," refers to those residuary devisees or legatees named in the will and not to "such issue of the devisee or legatee as survive testator" who may have been substituted under subsection (a) of this section. Bear v. Bear, 3 N.C. App. 498, 165 S.E.2d 518 (1969) (decided under prior law).

Heirs who partake of a devise pursuant to this section are entitled to a share of a lapsed residuary gift; if the predecessor would have taken a share of a lapsed residuary gift, then the qualified issue may also have participated in this lapsed gift. In re Will of Hubner, 105 N.C. App. 599, 414 S.E.2d 369 (1992).

Language disposing of property "not expressly disposed of by other provisions of the will" was a residuary clause and the decision concerning the taking of the lapsed share was controlled by In re Will of Huber , 106 N.C. App. 204, 416 S.E.2d 401 (1992). Moore v. Stern, 122 N.C. App. 270, 468 S.E.2d 607 (1996).

"All of the Residue" Embraces Personalty and Realty. - General words in a residuary clause of a will, "all of the residue," etc., embrace every species of property, whether real or personal, owned by the testator at his death, unless restricted by the context. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916).

Devise Passing under Residuary Clause. - It is settled law in this jurisdiction, by reason of the provisions of this section, that where a contrary intent does not appear in a will, ordinarily a lapsed, void or rejected devise will pass under an effective residuary clause. Featherstone v. Pass, 232 N.C. 349, 60 S.E.2d 236 (1950).

Devise of Lapsed Residuary Gift. - Heirs who partake of a devise pursuant to the anti-lapse statute are entitled to a share of a lapsed residuary gift. In re Hubner, 106 N.C. App. 204, 416 S.E.2d 401, cert. denied, 332 N.C. 148, 419 S.E.2d 572 (1992).

Where residuary legatees would have taken a share of a lapsed gift had they survived, their daughters, who were qualified issue, could take the entire share to which residuary legatees would have taken had they survived. In re Hubner, 106 N.C. App. 204, 416 S.E.2d 401, cert. denied, 332 N.C. 148, 419 S.E.2d 572 (1992).

Devise Not Passing under Residuary Clause. - Testator devised certain property to his sister for life, remainder to the county to be used as a charitable hospital, with further provision that if the property should not be so used, the county should forfeit the right of possession and title, and the property pass to testator's heirs at law. It was held that upon the renunciation by the county after the death of the life tenant, the remainder passes to testator's heirs in accordance with the expressed intent of testator, leaving no interest to pass under the subsequent residuary clause of the will. Featherstone v. Pass, 232 N.C. 349, 60 S.E.2d 236 (1950).

Effect of Failure to Name Devisee. - There was a devise of land "to my . . . ." without naming the devisee, followed by a residuary clause of the will, "that all of the residue of my estate be sold, and if there should be any surplus over the payment of debts and expenses, that such surplus be equally divided and paid over" to certain named persons. It was held, that the failure to name the devisee brings the devise within the terms of the statute as to void devises, or those incapable of taking effect, and the property devised will go to the residuary legatees, and not to the heirs at law. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916).

Devise Failing for Misdescription. - A general residuary bequest carries lapsed and void legacies, and property which is the subject of a devise which fails by reason of a misdescription. Faison v. Middleton, 171 N.C. 170, 88 S.E. 141 (1916).

Subject Matter of Void Legacy Included in Residuary Legacy. - Under the provisions of this section, the property which is the subject matter of a void legacy, is included within the residuary legacy provided by the will, and should be delivered by the executor to the residuary legatees. Wilmington Sav. & Trust Co. v. Cowan, 208 N.C. 236, 180 S.E. 87 (1935).

Lapse of Shares of Some of Residuary Legatees. - Where the testator has named several beneficiaries in a residuary clause, and it appears upon the face of the will that several of these names have been run through with a pen, and the intention of the testator to revoke has been established, the beneficiaries whose names have been thus erased take nothing, and the whole estate, under the residuary clause, goes to the others therein named together with such legacies as may have lapsed. Barfield v. Carr, 169 N.C. 574, 86 S.E. 498 (1915).

III. DEVISE OR LEGACY TO TESTATOR'S SLAYER.

.

Editor's Note. - Some of the cases cited below were decided under this section as it appeared prior to the 1951 amendment and former G.S. 31-42.1 and G.S. 31-42.2.

Subsection (a) Rather Than Subdivision (c)(2) Applies. - If the court were to hold that subdivision (c)(2) of this section applies merely because the slayer does not, in fact, predecease the slain, the court would be ignoring the legislative scheme intended by the statutory presumption of the slayer's death. Moreover, subsection (c) expressly states that that subsection applies only if subsection (a) is not applicable, thus making subsection (a) the dominant or controlling statute. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Presumption in G.S. 31A-4(3) Equivalent to Actual Death. - It was the intent of the General Assembly that the presumption in G.S. 31A-4(3) be equivalent to actual death for all purposes of determining the disposition of property of the testator. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Distributed in Accord with Subsection (a). - Because of the failure of a slayer's legacy, the property that would have gone to him under the will had he not been convicted of killing the testator must be distributed in accord with subsection (a). Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Where slayer's two children are alive and would have been heirs of testator had he died intestate, slayer's failed legacy must pass by substitution to them in accordance with subsection (a). Because of the conclusive presumption in G.S. 31A-4(3) that the slayer predeceased the testator, subsection (a), not subdivision (c)(2), applies. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).