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 Perry, 193 N.C. 397, 137 S.E. 145 (1927); In re Johnson? 181 N.C. 303, 106 S.E. 841 (1921).

The court must not, in instructing the jury, assume and take for granted that controverted material facts are true. Reynolds v. Massey, 219 Ala. 265, 122 So. 29; De Loach Mills v. Middlebrooks, 95 Ala. 459, 10 So. 917; Williams v. Ellington, 233 Ala. 638, 172 So. 903. A will, in order to be legally effective as such, must purport, within its four corners and upon its face, to be posthumous disposition, and the name ascribed to the document by the alleged testator and borne by it is a material matter for consideration in determining whether or not the document is a will. Craft v. Moon, 201 Ala. 11, 75 So. 302; Wiggins v. Wiggins, 241 Ala. 333, 2 So.2d 402; Marsh v. Rogers, 205 Ala. 106, 87 So. 790; Young v. Wark, 76 Miss. 829, 25 So. 660; In re Perry's Will, 193 S.C. 397, 137 S.E. 145. The burden of proof upon a contestant is to establish lack of testamentary capacity to the reasonable satisfaction of the jury, and an instruction requiring the jury to be satisfied, instead of reasonably satisfied, exacts too high a degree of proof, and the giving of such instruction is prejudicial error requiring reversal. Johnston v. Johnston, 174 Ala. 220, 57 So. 450; Nabers v. Long, 207 Ala. 270, 92 So. 444.

was refused probate as a holographic will of the testator, whose widow bore the name "Lula G. Smith". See In re Perry's Will (N.C.), 137 S.E. 145; Fransioli v. Podesta (Tenn.), 134 S.W.2d 162; Wiggins v. Wiggins (Ala.), 2 So.2d 402; and annotation 117 A.L.R. 1327. In Jacoby's Estate (Pa.), 42 A. 1020, there was a signed writing on a box and unsigned indorsements on envelopes therein.

The right to dispose of property by will is conferred and regulated by statute. Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 232; In re Perry, 193 N.C. 397, 137 S.E. 145. Nor may these letters be held to create a trust in favor of the plaintiff enforceable in a court of equity.

The reference to property as "willed to my wife" apparently related to his will dated 10 October, 1921. The animus testandi does not appear. That J. F. Smith intended this appear to constitute a new or different disposition of his property is negatived by the context and purport of his written words, and by the character of the situation in which they are found. In re Perry, 193 N.C. 397, 137 S.E. 145; In re Will of Johnson, 181 N.C. 303, 106 S.E. 841; Spencer v. Spencer, 163 N.C. 83, 79 S.E. 291; Alston v. Davis, 118 N.C. 202, 24 S.E. 15. Words not in the handwriting of the testator are essential to give meaning to the words used. In re Will of Parsons, 207 N.C. 584, 178 S.E. 78; In re Will of Lowrance, 199 N.C. 782, 155 S.E. 876.

The paper writing in question seems to meet this test. In re Will of Thompson, 196 N.C. 271, 145 S.E. 393; In re Johnson, 181 N.C. 303, 106 S.E. 841. Nothing was said in In re Bennett, 180 N.C. 5, 103 S.E. 917, or in In re Perry, 193 N.C. 397, 137 S.E. 145, which militates against this position. The judgment is approved.

Affirmed. Cited: Sluder v. Lumber Co., 181 N.C. 72; Willis v. Anderson, 188 N.C. 483; Ramsey v. Davis, 193 N.C. 397; Vance v. Guy, 223 N.C. 414.

Affirmed. Cited: McKinney v. Patterson, 174 N.C. 490 (4c); Bailey v. Barnes, 188 N.C. 379 (4e); Willis v. Anderson, 188 N.C. 483 (3c); Brinson v. Morris, 192 N.C. 215 (1p); Ramsey v. Davis, 193 N.C. 397 2d; Leftwich v. Franks, 198 N.C. 292 (2p); Chandler v. Cameron, 227 N.C. 236 (2c); Lodge v. Benevolent Asso., 231 N.C. 526 (1c).

In certain cases, a peremptory instruction has been held appropriate on particular issues. In re Will of Simmons, 268 N.C. 278, 150 S.E.2d 439 (1966) (peremptory instruction for propounder where no evidence of undue influence); In re Will of Perry, 193 N.C. 397, 137 S.E. 145 (1927) (peremptory instruction for caveators where no evidence of testamentary intent); In re Will of Bennett, 180 N.C. 5, 103 S.E. 917 (1920) (same). This body of very well settled law was reconsidered and modified in In re Will of Mucci, 287 N.C. 26, 213 S.E.2d 207 (1975), an appeal from a directed verdict in favor of caveators on the issue of testamentary disposition.