The opinion
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ClaRK, J.
The script in question was found in a book in which the deceased kept valuable memoranda, among other things, accounts and also statements of the amounts of money he had on hand, which corresponded exactly with the amount found and with the several packages of money specifically bequeathed in the will. His money was found in a chest in the adjoining room.
It was admitted that the book was found in his bed, under his body, the day he died. The finder placed it on the bureau at the head of the bed; it fell behind it and was found a week later on the floor behind the bureau. The Court charged the jury that this did not constitute a finding “among the valuable papers and effects of the deceased, and hence the script was not the last will and testament of said Thomas J. Sheppard.” The propounders excepted, and this presents the sole question for our determination. We think there was error, and that the evidence should have been submitted to the jury.
Simms v. Simms,
21 N. C., 684 ;
Hill v. Bell,
61 N. C., 122 ;
Hughes v. Smith,
64 N. C., 493 . In the latter case it is said, “The requirements of the statute are sufficiently complied with if the script is found among the valuable papers and effects, under such circumstances as to show that the deceased regarded it as a’valuable paper, and desired it to take effect as his will.” Here the script was written in a book containing valuable papers, the memorandum of his moneys, accounts, etc. It had been kept in a box ón a table in his reach, which contained his deeds and account books, and when that had been moved out three weeks before his death, he had caused this book to be brought back to him and he retained it in his immediate possession, in the bed with him, and it was found under his body at his death. Certainly this was evidence upon which the jury should be allowed to find whether or not he “regarded it as a valuable
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paper and desired it to take effect as Ms will/’ for tbe only defect suggested is as to tbe place where it was found.
In
Winstead v. Bowman,
68 N. C., 170 , tbe Court criticised, if it does not overrule, tbe narrow rule wbicb bad been laid down in
Little v. Lockman,
49 N. C., 494 , and says, “Tbe pbrase ‘among tbe valuable papers and effects’ can not necessarily and without exception mean 'among tbe
most
valuable’ etc. * * * Tbe pbrase can not have a fixed and unvarying meaning to be applied under all circumstances. It can only mean that tbe script must be found among such papers and effects as show that tbe deceased considered it a paper of value, one deliberately made and to be preserved and intended to have effect as a will. This would depend greatly upon tbe condition, and business, and habits of tbe deceased, in respect to keeping valuable papers.”
A very similar case is
Brown v. Eaton,
91 N. C., 26 , in wbicb tbe script was written in a book containing accounts due deceased and was found eight months after bis decease in a bureau drawer.
In Tennessee, in which the statute is our act of 1784 (now found in our Code, section 2136), it is said in
Tate v. Tate,
30 Tenn. (11 Humph.), 466, “tbe intention of tbe statute is that it shall appear to be a will, whose existence and place of deposit were known to tbe testator, and that be bad it in bis care and protection, preserving it as bis will.” In
Regan
v.
Stanly,
79 Tenn. (11 Lea), 316, in a diary was found, imbedded among other entries, a disposition of property, written and signed. This diary was found among bis books of account, and tbe will therein written was admitted to probate.
Tbe script here propounded was written in a book wbicb itself contained valuable papers. Tbe testator’s conduct as to this book, bis calling for it when bis deeds and other books of account, wbicb be bad always kept by him in reach, were
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moved out of bis room during bis last illness, and bis retention of it in bis immediate custody and possession, were cir■cumstances which tbe propounders were entitled to bave passed upon by tbe jury, to say tbe least.
New trial.