Opinion
June Term, 1853.
An infant under the age of twenty-one and above the age of eighteen years, has power, by a will duly executed, notwithstanding the acts of 1840, chapter 62, and 1846, chapter 54, to dispose of his personal estate.
(The case of Tucker v. Tucker, 27 N.C. 161, cited and approved.)
THIS was an issue of devisavit vel non, tried before his Honor, Judge Saunders, at Spring Term, 1853, of PASQUOTANK Superior Court of Law. The paper-writing offered for probate as the last will and testament of Sabina Williams, was, on the trial of the issue, proved by the two subscribing witnesses to have been signed and published by the testatrix in their presence, and by them subscribed and attested in her (272) presence a short time previous to her death, which took place in the fall of 1850; and that at the time of executing said writing, the testatrix was of sound and disposing memory. It was further proved, that the said Sabina, at the time of making the will, was of the age of eighteen years and seven months.
W. N. H. Smith, Brooks and Jordan for defendants.
Pool for plaintiffs.
It was admitted that the said will was not sufficient to pass real estate by reason of the testatrix not having attained the age of twenty-one years, and the probate was insisted on only as a will of personal estate. For the defendants, it was insisted that by virtue of the act of 1840-'41, the paper-writing not being valid to pass real estate, was also invalid to pass personal estate.
His Honor being of opinion that the testatrix was capable of making a will to pass personal estate, notwithstanding the act of 1840-'41, so instructed the jury; and from a verdict and judgment accordingly, establishing the paper, the defendants appealed to the Supreme Court.
We concur in the opinion pronounced by his Honor in the court below, that the testatrix was, notwithstanding the acts of 1840, chapter 62, and 1846, chapter 54, capable of making a will to pass her personal estate. Since the act of 1811 (Rev. Code, chap. (273) 820-1; Rev. Stat., chap. 122, sec. 14), which declares that "no person shall be capable of disposing of chattels by will, until he or she shall have attained the age of eighteen years," it has not been questioned until now, that a minor who had attained that age, could make a will disposing of his or her personal estate. But it is now insisted that the operation of the acts of 1840 and 1846 has been to take away from infants, over eighteen and under twenty-one years of age, their testamentary capacity over their personal property. The act of 1840, chapter 62, declares that "no will in writing, made after the fourth day of July, one thousand eight hundred and forty-one, whereby personal estate is bequeathed shall be sufficient to convey or give the same, unless such will be executed with the same formalities as are required in the execution of wills of real estate, according to the provisions of the first section of the said statute" — to wit, the first section of the 122d chapter of the Revised Statutes. Now it is clear from the express words of this act, that it extends only to the formalities required in the execution of wills of personalty; that is, they must "have been written in the testator's lifetime, and signed by him, or some other person in his presence and by his direction, and subscribed in his presence by two witnesses at least," etc., according to the first section of the (274) chapter of the Revised Statutes above referred to. Tucker v. Tucker, 27 N.C. 161. It cannot be held, by any rules of construction known to us, to affect the capacity of the testator or testatrix. The other act relied upon — to wit, the act of 1846, chapter 54 — declares that "no will in writing, made after the ratification of this act, which shall not be sufficient to convey or give personal estate, shall be good as to any real estate therein devised." It is argued for the defendants, that from these words it is manifest that the Legislature intended to put wills of personalty upon the same footing in every respect with wills of realty; and that what should be good as to the one kind of property should be equally good as to the other, and vice versa, what should be ineffectual as to one should be so also as to the other. Hence, they conclude, that as wills made by infants, over eighteen but under twenty-one years of age, cannot "convey or give" real estate, they shall not be good as to any personal estate therein bequeathed. This argument supposes the Legislature to have taken a very strange mode of expressing their meaning — that is, that they have said one thing, and intended not only that, but something almost the reverse of it also. They have said that no will, which is insufficient to pass personal estate, shall be sufficient to pass real estate; but they have not said that no will which cannot convey real estate, shall be insufficient to convey personal estate. To give the act that effect, would be to wrest words from their natural and proper meaning to accomplish the ungracious purpose of taking from a certain class of persons their capacity of disposing by will of a portion of their property. Such a construction we deem altogether inadmissible, and we therefore affirm the judgment, and direct it to be certified to the Superior Court, to the end that a writ of procedendo may issue to the county court as the law directs.
PER CURIAM.
Judgment affirmed.
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