
    In re Will of W. T. JENKINS.
    (Filed 13 December, 1911.)
    
      1. Wills, Holographic — “Valuable Papers and Effects” — Interpretation of Statutes.
    Tbe statute as to a holographic will requires that the paper must have been found “among the valuable papers and effects of the deceased” (Revisal, sec. 3127). The substitution, in the Revised Code, of the word “and” for the word “or,” was not intended to make any substantial change in the law, and the word “and” should be construed as “or.”
    2. Same — Policies of Insurance.
    The word “effects,” as used by Revisal, sec. 3127, includes policies of fire insurance within its meaning.
    3. Wills, Holographic — Interpretation — Construed Strictly — Expressed Purpose — “Valuable Papers and Effects” — Interpretation of Statutes.
    While the statute relating to holographic wills is mandatory and is to be construed strictly with reference to its requirements, it will not be so rigidly enforced as to defeat its clearly expressed purpose, and it is sufficiently complied with as to the place where the script must he found to constitute a valid will, if it is found among the valuable papers and effects of the deceased, under such circumstances as to show that he regarded it as a valuable paper worthy of preservation and desired it to take effect as his will. Huglvss v. Smith, 64 N. C., 493, cited and applied.
    4. Wills, Holographic — “Valuable Papers and Effects” — Comparative Values — Interpretation of Statutes.
    The statutory requirement that the script must be found “among the valuable papers and effects” of the deceased to constitute a valid holographic will, does not mean that the “papers and effects” must be the most valuable, for- such would be uncertain of ascertainment and likely to vary with the changing condition of the affairs of the deceased, and to depend upon his condition in life and business habits, and confusing in the event the deceased had more than one place of deposit for them. ■
    5. Wills, Holographic — Valuable Papers and Effects — Depository— “Found” — Presumptions—Interpretation of Statutes.
    The fact that a holographic will is found among the “valuable papers and effects” of the deceased implies that it was placed there by him, or with his knowledge and consent or approval, with the intent that it should operate as his will.
    6. Same.
    The statute requires proof that the script was found among the “valuable papers and effects of the deceased” to be valid as a holographic will, not that it was personally placed there by the author, and proof that the paper was thus found is sufficient in the absence of countervailing evidence.
    7. Same — Evidence—Nonsuit. .
    The deceased, whose holographic will is caveated, had several places of deposit for his “valuable papers and effects” — his desk in his store, his bureau in his home, his bookcase, and the drawer of the table in the hall of his house. There was evidence tending to show that after several weeks of unavailing search after his death, a script written by him and sufficient as his holographic will was found in the hall table drawer, which was little used, with his policies of fire insurance, all of which had expired but one, in a package marked “Important,” in his own handwriting: Held, a motion for judgment of nonsuit upon the evidence should be overruled which was based upon the ground that there was no evidence that the holographic will had been found among “the valuable papers and effects” of the deceased.
    
      8. Same — Instructions.
    Upon tlie evidence in this case it was proper for the trial judge to instruct the jury that if they found that the deceased placed the script in an envelope, with certain policies of fire insurance, and deposited them in a drawer of the table in the hall of his home, intending that it should be his will, the requirements of the statute were fully observed.
    Appeal from Joseph S. Adams, J., at January Term, 1911, of Halifax.
    Tbis is a caveat to a paper-writing which purports to be the last will and testament of ~W. T. Jenkins. Upon issues submitted to them, the jury found that the script and every part thereof is in the handwriting of the said Jenkins. It was unattested. The jury also found that the paper-writing, which had been proved in common form, is the will of W. T. Jenkins.
    The evidence tended to show that Jenkins died in May, 1909, and after his death a search was made for a will by Levi Browning, who married his niece, and had lived in the house with him three years, his wife having lived there practically all her life. The witness Browning testified that they searched the clothes of the deceased and looked over the papers and his house and his room. On direct examination he said there were no papers in the house, but on cross-examination corrected that statement and said that there were some papers in W. T. Jenkins’ bedroom in a bureau. They did not find a will in the house, according to Browning, and proceeded to examine the papers at W. T. Jenkins’ store. The witness' was asked:
    Q. ~W. T. Jenkins was a business man, was he not? A. Yes, sir; so far as I know.
    Q. He did have some papers that you found at the store? A. Yes, sir.
    Q. Yaluable papers — notes and mortgages, were they not? A. I don’t know that they were so valuable; didn’t seem to be kept up. Of course, there were some valuable papers in them— some deeds and things.
    According to the evidence of Browning and other witnesses, Captain Jenkins was a man of good business judgment, and a great many of the people in the neighborhood would come and get him to write papers for them. The paper-writing was dated 9 April, 1909, and tbe witness testified that W. T. Jenkins’ mind was sound at that time. Browning further testified that after N. E. Jenkins, a brother of the deceased, had qualified as administrator, which was twelve or fifteen days after the death of Captain Jenkins, he renewed the search for a will and found the paper-writing offered for probate in a table drawer in the hall of Captain Jenkins’ house. The paper was in an envelope with some insurance papers — insurance on his gin and dwelling — only one í>f which was then in force. After finding this paper, the witness, according to his own admission, did not tell any one connected with the estate or with Captain Jenkins about finding this paper until it was offered for probate, and he refused to let anybody compare the handwriting. Carrie E. Browning, who will take one-half of the estate of Captain Jenkins if this will is sustained, and who is the wife of Levi Browning, testified that it was two or three weeks after the death of Captain Jenkins before the will was found. She describes the finding of it as follows:
    “Well, as there had not been one found, of course we were on the lookout for one. We were hunting for some medicine my husband was taking- there was a person in the neighborhood' who wanted some poison, and he wanted to send him some sugar of lead, and he, with the object in view of finding a will, if there was one, and to get this medicine, happened to think of this drawer, and went, in there and found this paper.” Mrs. Browning was asked why the table was not examined earlier. She answered: “Became tue did not thinTc of papers being in there, as it was used for this poison medicine generally, as well as other kinds.” The witness also said that she had turned the drawer to the wall to keep the children from going in where this medicine was. She further said: “I knew what was in the drawer, but it was a drawer not used much — in everyday use, I should have said.” Asked, “How long, Mrs. Browning, before the death of Captain Jenkins did you go in the drawer?” she answered: “Well,. it probably might have been several months since we needed an article in that drawer.”
    Q. During his sickness you kept his medicines in that drawer ? A. No, no; did not keep them in there. We had them fresh from tbe doctor — kept tbem right on bis table and administered tbem from bis table.
    Levi Browning was recalled and testified that be found tbe paper in an envelope which was offered in evidence, and that insurance policies were also in tbe envelope. There was evidence that tbe will was found in an envelope on which was written, in tbe bandwriting of ~W. T. Jenkins, tbe word “Important.” Much testimony was introduced by tbe propounders to prove that tbe script was in tbe bandwriting of ~W. T. Jenkins, and by tbe caveators to show tbe contrary. Evidence was also offered by tbe caveators as to tbe circumstances under which the paper was found in tbe drawer. N. E. Jenkins, a witness for tbe caveators and a' brother of tbe deceased, testified that be examined all tbe papers of ~W. T.. Jenkins, both at bis bouse and store, but could not find a will; about fifteen days after bis brother’s death be qualified as administrator, and several days later, about tbe 18th or 19th of May, be received notice of the’ existence of this paper, but was not notified by Browning.
    At tbe close of tbe caveators’ evidence, Levi Browning was again recalled, and testified that'there was another policy in tbe envelope, that bad expired. At tbe close of tbe evidence the caveators requested tbe court to-instruct tbe jury that, upon tbe evidence, they should answer tbe issue “No,” thereby finding that tbe paper-writing exhibited by the propounders is not tbe last will and .testament of W. T. Jenkins, and they also asked for special instructions based upon tbe insufficiency of tbe evidence to establish tbe will, all of which were refused, and cavea-tors excepted and from tbe judgment against tbem appealed to this Court.
    
      W. D. Daniel and R. G. Duma for propounders.
    
    
      Murray Allen, Joseph P. Pippen, and George G. Green for caveators.
    
   "Walker, J.,

after stating tbe case: There was sufficient evidence in tbe case to prove that tbe script was found in tbe drawer with policies of insurance, some of which bad expired, and that it had been placed there by W. T. Jenkins, in an envelope upon which be bad written the. word “Important,” and that Levi Browning, when he found it, immediately took it from the envelope and read it to his wife, and the next morning she read it. In the paper, the testator devised and bequeathed his property to his nieces, Bessie M. Liles and Carrie E. Browning, wife of Levi Browning, who seem to have had the best claim upon his bounty, and appointed as his executor Hon. E. L. Travis, who had been his attorney and legal adviser. The formal execution of the script was sufficiently proved before the clerk, and at the trial of the issue devisavit vel non; but the contention of the caveators is that the paper was not found “among the valuable papers and effects” of the deceased, as required by statute (Revisal, see. 3127). Prior to the enactment of the Revised Code, the language of the statute was “that such will was found among the valuable papers or effects of the deceased.” We do not think the substitution of the copulative for the disjunctive conjunction was intended to make any substantial change in the law, and the word “and” should be construed as “or.” Otherwise, a person owning effects of ever so much value, but not having any valuable papers, or a person having valuable papers, but no valuable effects, could not execute a valid holographic will. We cannot believe the Legislature contemplated such a radical change in the law and that any such result should follow the change of a single word, and it has been so held, with good reason. Hughes v. Smith, 64 N. C., 493; Winstead v. Bowman, 68 N. C., 170. In the last case, Justice Rodman said: “We do not think this substitution (‘and’ for 'or’) was intended to make any change in the meaning of the statute. At all events, it made none to affect the present case. We only notice it to put it out of the way.” Besides, the word “effects” is comprehensive in meaning and is broad enough to include policies of insurance, which will answer both descriptions, valuable papers and effects. Brown v. Eaton, 91 N. C., 26.

We will now proceed to consider the other question, whether the paper was found in a proper place of deposit. “The statute of frauds in England, in relation to wills, and our act upon the same subject, have in view the same object, namely, the protection of the heirs at law, and next of kin of a decedent, from the effect of a forged or false paper as a will. For that purpose many forms and ceremonies are required to be observed in the execution of sucb instruments. "Wit]i regard to attested wills, tbe requisites of the English, and our statute, except as to the number of witnesses, are substantially the same. It is well known to the profession how strictly — we may say, sternly — the courts, in both countries have demanded a compliance with these provisions of the law. The same policy must govern us when we come to decide whether the requisitions of our statutes have been complied with in the execution of a paper-writing, propounded as a holograph will. One alternative requisition of the statute is that it must be ‘found among the valuable papers or effects’ of the alleged testator.” Little v. Lockman, 49 N. C., 495. The provisions of the statute are, of course, mandatory and not directory, and therefore there must be a strict compliance with them before there can be a valid execution and probate of a holograph script as a will; but this does not mean that the construction of the statute should be so rigid and binding as to defeat its clearly expressed purpose. It must be construed and enforced strictly, but at the same time reasonably. “The requirements of the statute are sufficiently complied with if the script is found among the valuable papers and effects, under such circumstances as that the deceased regarded it as a valuable paper (worthy of preservation) and desired it to take effect as his will.” Hughes v. Smith, supra. This Court said in Winstead v. Bowman, 68 N. C., 110: “We are led to conclude that the phrase ‘among the valuable papers and effects,’ cannot, necessarily and without exception, mean ‘among the most valuable,’ etc. If that were required, it might be difficult for one who had two or more places for keeping his valuable papers to know in which he could safely place his will. The values in cash would be liable to change more or less frequently. It might well happen that a bond or a large sum might be paid off and the money deposited in bank or invested in real estate, so that the place which contained the most valuable papers to-day might to-morrow contain only those of comparatively insignificant value. The phrase cannot have a fixed and unvarying meaning to be applied under all circumstances. It can only mean that the script must be found among such papers and effects as show that the deceased considere^ it a paper of value, one deliberately made and to be preserved, and intended to bave effect as a will. This would depend greatly upon the condition, and business, and habits of the deceased in respect to keeping valuable papers, and the place and circumstances under which the script was executed, viz., whether at home or on a journey, etc. It was not the intention of the Legislature to destroy, or unreasonably restrict, the power of making a holograph will; but simply to assure that the writing offered as a will was really and deliberately intended as such. The place in which it is found, supposing it to be found among valuable papers and effects, is but one circumstance in evidence upon that issue.” Referring to this passage in Judge Rodman’s opinion, the present Chief Justice said In re Sheppard’s Will, 128 N. C., 54: “In Winstead v. Bowman, 68 N. C., 170, that Court criticised, if it does not overrule, the narrow rule which-had been laid down in Little v. Lockman, 49 N. C., 494,” citing with approval Tate v. Tate, 30 Tenn. (11 Head.), 466, to this effect: “The intention of the statute is that it shall appear to be a will whose existence and place of deposit were known to the testator, and that he had it in his care and protection, preserving it as his will”; and, also, Reagan v. Stanly, 179 Tenn. (11 Lea), 316, to this effect: “In a diary was found, imbedded among other entries, a disposition of property, written and signed. This diary was found among his books of account, and the will therein written was (held to have been properly) admitted to probate.” Substantially to the same effect is Harper v. Harper, 148 N. C., 453. The fact that it is found among the writer’s valuable papers and effects 'implies that it must have been placed there by him, or with his knowledge and consent or approval, with the intent that it should operate as his will, and not that it was deposited surreptitiously by another person for the purpose of defeating instead of executing his will. If the paper is so found, it will be presumed that the deposit of it in the place was made by him or with his assent, and in the absence of evidence to the contrary or of suspicious circumstances, no proof of the fact is required. Pritchard on Wills, see. 236; Hooper v. McQuary, 5 Cold., 136. The statute does not demand proof that the author of the paper made tbe deposit, but only tbat it was found among bis valuable papers and effects, and proof of tbis fact is quite sufficient, at least, in tbe first instance and wben there is no countervailing proof. “ ‘Valuable papers’ witbin tbe meaning of tbe statute are sucb papers as are kept and considered worthy of being taken care of by tbe particular person, having regard to bis condition, business, and habits of preserving papers. They do not necessarily mean tbe most valuable papers of tbe decedent even, and are not confined to papers having a money value, or to deeds for land, obligations for tbe payment of money, or certificates of stock. Tbe requirement is only intended as an indication on tbe part of the writer tbat it is bis intention to preserve and perpetuate tbe paper as a disposition of his property, and tbat be regards it as valuable; consequently, tbe sufficiency of tbe place of deposit to meet tbe requirement of tbe statute will depend largely upon tbe condition and arrangements of tbe testator.” Pritchard on Wills, sec. 237; Winstead v. Bowman, 68 N. C., 170; Marr v. Moot, 2 Head., 303 (S. E. 5 Sneed, 385); Allen v. Jeter, 6 Lea, 672; Reagan v. Stanly, 11 Lea, 316.

Applying these .principles to tbe facts of our case, it would seem tbat there bad been sucb a full compliance with tbe provisions of tbe statute as to constitute tbe paper-writing found in tbe drawer of tbe table tbe will of tbe writer. He- appears not to have been very careful in handling bis papers. There were these places of deposit: bis desk in tbe store, bis bureau in bis borne, bis bookcase, and tbe drawer of tbe table in tbe ball of bis bouse. It would appear tbat of tbe four, be regarded tbe drawer of tbe table as tbe most important place of deposit, for be not only placed in it bis policies of insurance, but tbe script was found in an' envelope on which be bad written tbe word “Important.” What could be more indicative of bis desire tbat tbe paper should take effect as bis will; and of tbe fact tbat be considered tbe place as one for tbe deposit of bis valuable papers, than bis words tbat tbe papers inclosed in tbe envelope were “important” ? But aside from tbis fact, a policy of insurance is a valuable paper (Harper v. Harper, supra; Hooper v. McQuary, supra) witbin tbe meaning of tbe statute, and it was evidently so considered by him. As testified by one of tbe witnesses, tbe papers in tbe other places of deposit were not so kept as to show that be regarded them as of any great value, nor, under tbe circumstances, would it be any more likely that bis will should have been found there than in tbe drawer of tbe table at bis home ? Tbe court left it to tbe jury to say whether, under all tbe facts and circumstances, W. T. Jenkins bad placed tbe paper in tbe drawer with tbe intention to preserve and take care of it as his will, telling them that within tbe meaning of tbe law a policy of insurance is a valuable paper. The jury were properly instructed as to bow they should consider and apply the'evidence in tbe case. We do not see why this was not a proper instruction, and as much so as similar ones which were given in tbe cases we have cited. Whether tbe table drawer was a proper place of deposit under tbe statute was a question to be determined largely by tbe jury upon tbe particular facts of tbe case. It was certainly not error to submit tbe question to tbe jury instead of deciding it as matter of law. In re Sheppard’s Will, supra. If tbe jury found that W. T. Jenkins placed tbe paper in tbe envelope, with tbe policies of insurance, and deposited them in tbe drawer, intending that it should be bis will, tbe requirements of tbe statute were fully observed, and their verdict declaring tbe paper to be bis last will and testament was warranted in law.

Tbe case of Brogan v. Barnard, 115 Tenn., 260, cited by appellant’s counsel, is not in point. It was decided upon tbe ground that tbe stamps' and stationery were not valuable papers, as they did not record anything, and, besides, they did not belong to tbe writer of tbe script, but to tbe United States.

We find no error in tbe rulings or charge of tbe court.

No error.  