
    In re Will of J. VESTAL JOHNSON.
    (Filed 27 April, 1921.)
    Wills — Holograph. Wills — Unmailed Letters — Intent to Make a Will.
    A letter written and signed by the supposed testator must, to constitute his last will and testament, show that it was his intention that the paper itself should operate as a disposition of his property, to take effect after his death; and when the letter propounded is found stamped and addressed in the pocket of the deceased after his death, etc., and refers to a conversation with the addressee as to the making of his will, saying he wanted the addressee to write it and the deceased would pay for it; and after saying how the estate was to be disposed of, that the writer would “be up town as soon as he got able,” expresses merely an anticipated testamentary intent, and as a matter of law is not operative as a valid will.
    Appeal by propounders from Bay, J., at November Term, 1921, of Guileoed.
    This is a proceeding for the production and probate of a certain paper-writing as the will of J. Vestal Johnson.
    
      At tbe bearing bis Honor found tbe following facts, to wbicb all parties agreed:
    “1. Tbat J. Yestal Johnson died in tbe county of Guilford, State of North Carolina, after an illness of one week, on June 17, 1918, possessed of real and personal property.
    “2. At tbe time of bis death, and some time prior thereto, be bad been renting part of bis dwelling to tbe husband of Mrs. Bettie Brinttle, and tbe Brinttle family was living in said dwelling-house, tbe deceased reserving a room for bis own occupation.
    “3. Tbat some few days after bis death Mrs. Bettie Brinttle, while engaged in cleaning up tbe room formerly occupied by tbe deceased, found a pasteboard box such as is usually used by clothing merchants in wbicb to deliver clothes when sold to customers. Tbat this pasteboard box was in bis room, and be usually kept bis suits of clothes therein and same was usually kept in bis trunk, and be kept bis valuable papers in bis trunk. Tbat tbe said Mrs. Brinttle took bis clothes out to air, and from tbe pocket of one of bis coats wbicb be bad been wearing there fell a stamped envelope sealed and addressed to ‘Mr. Joe Seehrest, High Point, N. C.’
    “4. Tbat said envelope with its contents was sent by Mrs. Brinttle to tbe said Seehrest and opened by tbe said Seehrest and found by him to contain a letter as follows:
    High PoiNT, N. C., 10 June, 1918.
    Deak Joe: — You knew tbat we was talking about my will. I want you to write my will for me, and also I want you to bury me in a steel-gray casket and a steel-gray case, wbicb can be locked so water can’t get to me, and want you to put nice tombs to my grave. You pay $200 for tbe tombs. And I want to give little Juanita Franklin $100 and little Pauline Lambeth $100; and I want to give Mrs. Brinttle my home bouse and lot, and tbe rest of my property to be equally divided among my peojde. Joe, you please do this favor for me, and I will pay you what you charge for your trouble. I will be up town as soon as I get able. I don’t feel good today. I will close. Joe, you copy this with ink for me. As ever,
    Your friend, . J. Yestal JohNsoN.
    “5. Tbat said paper-writing was not delivered by tbe decedent to tbe said Seehrest, to whom it was directed, nor delivered by him to any one, but tbat it was kept by him from its date, to wit, 10 June, 1918, until bis death on 17 June, 1918, and was not out of bis possession, although it was sealed and stamped.”
    All of said paper was in tbe bandwriting of tbe said Johnson.
    
      His Honor beld that said paper was not a will and entered judgment accordingly, and the proponnders excepted and appealed.
    
      E. D. Steele and King, Sapp & King for respondents.
    
    
      L. B. Williams and O. G. Barnhardt for propounder.
    
   ÁlleN, <7.

No particular form is required for the disposition of property by will, and in the application of this principle it has been held frequently that letters were valid as wills when properly executed. In re Ledford, 176 N. C., 612.

It must, however, appear that the paper-writing offered for probate, whatever its form, was written animo testendi, by which is meant, not that the maker intended thereafter to make a will on the terms of the paper, but that it was his intention that the paper itself should operate as a disposition of his property, to take effect after his death.

In the Bennett case, 180 N. C., 5, the court refused probate of a letter offered as a will because it did not appear that it was the intention then to make a will, and among other things says: “A will may take the form of an assignment, or of a deed, or of a power of attorney, or of a letter, or of a promissory note, or of a deed, or order, etc., say the authorities. It may assume the form of any instrument or be absolutely informal. This principle is well settled and numerous examples of such wills are to be found in the law books and decisions of the courts here and abroad. Gardner on Wills (1st Ed.), pp. 36 to 43. And the courts have gone very far to support such documents as valid wills, but at the same time they have required sufficient certainty and assurance as to the intention to presently, or at the time the particular document comes into existence, make a will, and as to that paper being the very will he intended to make. Gardner, at p. 40, says:.‘So.a letter written by a testator to a friend, authorizing him to take charge and dispose of the testator’s property, and to sell and convey the same as his executor, properly attested, sufficiently evidences the testator’s intention to dispose of his property, and may be probated as a will. But a letter, like any other instrument, to take effect as a will, must be executed in compliance with the requirements of a statute, and must express a genuine and not merely an anticipated testamentary intent.’ ” And again: “In the ease of In re Estate of C. B. Richardson (appeal of Nina R. Hardee), 94 Calif., 63, the Court held that a letter, which merely expressed a desire that his sister and her children get everything he owned, but containing words indicating that they should take it by a formal will, or by one he would make, was not testamentary in character, but only the expression of a desire, it clearly not being the intention that the letter should be so construed as to become his last will.”

Following these precedents it must be held that the paper-writing offered for probate is not the will of J. Yestal Johnson, because it shows on its face that it was not the intention of the deceased that the paper should operate as a will but merely that he had in contemplation the preparation of a will by which final disposition of his property should be made.

He says, “I want you to write my will for me,” indicating a clear purpose to have a will prepared, and that he was simply outlining the contents of a will.

Again, “I want you to give,” etc., which is simply an instruction for the preparation of a will. “I will pay you what you charge for your trouble,” which was for the preparation of the will.

There is nothing in the paper to show a present purpose that it should be the final disposition of his property to take effect after his death; and, on the contrary, the whole letter gives indication that he was giving instructions for the preparation of a will, and the fact that he retained the paper instead of mailing it furnishes evidence that he had not fully determined what he would do with his property.

The refusal to submit an issue as to the intention of the deceased was not erroneous, as this intent must be gathered from the letter and the surrounding circumstances, and a finding of the jury contrary to the language used in the letter could not be sustained.

Affirmed.  