                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA19-345

                               Filed: 21 April 2020

Buncombe County, No. 17 E 608

IN THE MATTER OF THE ESTATE OF PAUL WILLIAM MALLIE WORLEY, a/k/a
Paul Worley, Deceased.

BRENDA WORLEY MOSS, BARBARA WORLEY INGLE, and LESTER WORLEY,
Petitioners,

            v.

PATRICIA SPROUSE, DARLENE WATERS, LAVONDA GRIFFIN, DANNY
MATHIS, and JORDAN HAWKINS, Respondents.


      Appeal by Respondents from order entered 5 December 2018 by Judge Bradley

B. Letts in Buncombe County Superior Court. Heard in the Court of Appeals 16

October 2019.


      Long, Parker, Payne, Anderson & McClellan, P.A., by Ronald K. Payne and
      Thomas K. McClellan, for Petitioner-Appellee.

      Frank G. Queen, PLLC, by Frank G. Queen, and Smathers & Smathers, by
      Patrick U. Smathers, for Respondent-Appellant.


      DILLON, Judge.


      This matter concerns the estate of Paul Worley, who died in 2017 unmarried

and without lineal descendants. Respondent Patricia Sprouse (“Ms. Sprouse” or

“Pat”), Mr. Worley’s long-time companion, offered a certain document for probate

which she contends is Mr. Worley’s will and which leaves her his entire estate. She
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                                   Opinion of the Court



appeals the Superior Court’s order concluding that this document “does not constitute

a Last Will and Testament of [Mr. Worley]” and revoking the Certificate of Probate

and Order Authorizing Issuance of Letters. After careful review, we vacate this order

and remand for further proceedings.

                                    I. Background

      Mr. Worley died on 14 January 2017. He had no spouse or children but was

survived by three of his four siblings.

      Petitioners are Mr. Worley’s three surviving siblings (the “Siblings”). Ms.

Sprouse is Mr. Worley’s alleged partner for the last thirty-six (36) years of Mr.

Worley’s life. The other Respondents are the descendants of Mr. Worley’s sibling who

predeceased him.

      Following Mr. Worley’s death, Ms. Sprouse offered a short document for

probate, a document which purports to be in Mr. Worley’s handwriting, which read:

             March 13, 2001
             Last Will of Paul Worley:

             I want Pat [Sprouse] to have the power of attorney of all
             that I own. That means land, cars, money, guns, clothing
             and anything else!

             I don’t want Grace Price Worley to have none.

             Signed March 13, 2001 9:00pm
             Paul Worley




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(This document is hereinafter referred to as the “Holographic Document.”)1

       The Clerk admitted the Holographic Document to probate. However, while the

matter was pending before the Clerk, the Siblings filed a petition, commencing an

estate proceeding, seeking an order revoking the probate of the Holographic

Document. In their petition, the Siblings contended that the Holographic Document

is not Mr. Worley’s will. All interested parties were served in accordance with Rule

4 of our Rules of Civil Procedure. See N.C. Gen. Stat. § 28A-2-6(a) (2017).

       After a hearing on the matter, the Clerk dismissed the Siblings’ petition,

concluding that she lacked subject-matter jurisdiction to determine whether the

language in the Holographic Document exhibits testamentary intent. The Clerk’s

dismissal order was appealed to the Superior Court.

       After a hearing on the matter, the Superior Court concluded that the

Holographic Document was not Mr. Worley’s will and directed the Clerk on remand

to revoke probate of the Holographic Document.

       Ms. Sprouse timely appealed that order to this Court.

                                         II. Analysis

       The Superior Court held, as a matter of law, that the Holographic Document

was not Mr. Worley’s last will because it “makes no testamentary disposition of [Mr.




       1 The phrase “Witness by Carolyn S. Surrett” in another’s handwriting appears below Paul
Worley’s purported signature.

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                                   Opinion of the Court



Worley’s] property [but] merely appoints [Ms.] Sprouse as Power of Attorney,” an

appointment which lost all effect upon Mr. Worley’s death.

      This appeal raises a number of interesting issues. We address these issues in

turn below.

               A. Clerk’s Jurisdiction vs. Superior Court’s Jurisdiction

      The parties raise issues concerning the respective jurisdictions of the Clerk

and of the Superior Court in considering the Siblings’ petition to revoke probate. For

the following reasons, we conclude that the Clerk properly determined that she lacked

jurisdiction and that the matter was properly brought up before the Superior Court.

      In some estate proceedings, there is no dispute as to the validity of the

document offered to probate as being the will of the decedent. Rather, in those

proceedings, the dispute concerns the interpretation of the will.

      But in other estate proceedings, interested parties dispute the testamentary

value of the document being offered for probate. In such cases, the matter must be

transferred to Superior Court to resolve whether the document is, in fact, the will of

the decedent. Specifically, our General Assembly directs that “[u]pon the filing of a

caveat or raising of an issue of devisavit vel non, the clerk shall transfer the cause to

the superior court, and the matter shall be heard as a caveat proceeding.” N.C. Gen.

Stat. § 28A-2A-7(b) (emphasis added).




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      “Devisavit vel non” is a Latin phrase meaning “he devises or not,” In re Estate

of Pickelsimer, 242 N.C. App. 582, 587, 776 S.E.2d 216, 219 (2015), and, when

invoked, raises an issue “of whether or not the decedent made a will and, if so,

whether [the document] before the court is that will.” In re Will of Hester, 320 N.C.

738, 745, 360 S.E.2d 801, 806 (1987).

      In this matter, the Siblings did not file a formal caveat with the Clerk.

However, they did otherwise raise the issue of devisavit vel non in their petition,

contending that the Holographic Document is not Mr. Worley’s will. Therefore, since

the Siblings raised the issue of devisavit vel non in their petition, the Clerk was

correct in concluding that she lacked jurisdiction to decide the issue, and the matter

was properly brought before the Superior Court.

   B. Superior Court’s Exercise of Jurisdiction in Deciding Testamentary Intent

      Having determined that the matter was properly before the Superior Court,

we now address whether that Court properly determined, as a matter of law, that the

Holographic Document should not be probated, without submitting any issue to a

jury. As explained below, we conclude that there is an issue of material fact which

the Superior Court should have submitted to a jury and that, therefore, the Superior

Court erred in deciding the issue as a matter of law.




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       Our Supreme Court recognizes the authority of a superior court judge to decide

the issue of devisavit vel non, without submitting the issue to a jury, when there is

no material issue of fact raised:

               Where, as here, propounder fails to come forward with
               evidence from which a jury might find that there has been
               a testamentary disposition it is proper for the trial court
               under Rule 50 of the Rules of Civil Procedure to enter a
               directed verdict in favor of the caveators and adjudge, as a
               matter of law, that there can be no probate.

In re Will of Mucci, 287 N.C. 26, 36, 213 S.E.2d 207, 214 (1975).2 Accordingly, we

conclude that a judge of the Superior Court may determine that a document is not a

decedent’s will as a matter of law in the appropriate case.

       In this case before us today, the Superior Court decided, as a matter of law,

that the Holographic Document was not Mr. Worley’s will, reasoning that the

language Mr. Worley used fails to accomplish any testamentary purpose. Indeed, the

Holographic Document merely appoints “Pat” as Mr. Worley’s “power of attorney”



       2   See In re Will of Jones, 362 N.C. 569, 573-74, 669 S.E.2d 572, 576 (2008) (suggesting that
summary judgment on the issue of devisavit vel non is proper where there is no issue of material fact
on the issue). See also In re Will of McNeil, 230 N.C. App. 241, 243, 749 S.E.2d 499, 501-02 (2013)
(recognizing the propriety of summary judgment on the issue of devisavit vel non).
         Some older cases from our Supreme Court held that the issue of devisavit vel non had to be
decided by a jury and could never be decided by the judge as a matter of law. See In re Ellis’ Will, 235
N.C. 27, 32, 69 S.E.2d 25, 28 (1952) (caveat proceeding “must proceed to judgment, and a motion for
judgment as of nonsuit, or for a directed verdict, will not be allowed.”). However, it was held in other
older cases that a judge could determine the validity of a document as being a will, as a matter of law.
See In re Johnson’s Will, 181 N.C. 303, 306, 106 S.E. 841, 842 (1921) (holding that “[t]he refusal to
submit an issue as to the [testamentary] 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.”).


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                                    Opinion of the Court



over his property, a power which by law ceases when Mr. Worley dies. See N.C. Gen.

Stat. § 32C-1-110(a)(1) (2017) (stating that “[a] power of attorney terminates when .

. . [t]he principal dies.”).

       The Siblings contend that the Superior Court got it right (in which case they

would stand to inherit as Mr. Worley’s heirs at law), citing “[t]he most instructive

case” on point as being In re Seymour’s Will, 184 N.C. 418, 114 S.E. 626 (1922).

Seymour’s Will involved a document whereby the decedent appointed her husband as

her power of attorney and contained language indicating that the decedent intended

the document to be her last will and testament. Id. at 418, 114 S.E. at 626. We agree

with the Siblings that Seymour’s Will is highly instructive; however, we do not agree

that Seymour’s Will necessarily requires the result reached by the Superior Court.

       The document offered for probate in Seymour’s Will was signed by Mrs.

Seymour and, like the Holographic Document here, contains language appointing

someone as a “power of attorney,” stating:

               This is to certify that I, [Mrs. Seymour] do this 26 July
               1921, invest my husband, [ ], with full power of attorney
               over [all of my property] for the purpose of acting for me in
               all business matters[.]

               This also constitutes my last will.

Id. at 418, 114 S.E. at 626. The Superior Court determined as a matter of law that

no part of the two-sentence document operated as a will, a determination which was

affirmed by our Supreme Court. Id. at 421, 114 S.E. at 628.


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      Our Supreme Court held that the first sentence did not operate as a will. Id.

at 420-21, 114 S.E. at 627. In reaching that conclusion, the Supreme Court was not

so troubled by Mrs. Seymour’s use of the words “power of attorney,” recognizing that

the words used by a testatrix need not be “technically appropriate” to be legally

effective in creating a testamentary disposition of one’s property:

             It is true that no particular form of words is necessary to
             express an intention to dispose a person’s property after his
             death, and the use of inartificial language will not be
             permitted to defeat an apparent intention expressed in an
             instrument which [otherwise] complies with the formalities
             of law. . . . This [intention] may be manifested by an
             intention [that the power granted or disposition made not]
             to take effect in any way until the testator’s death.

Id. at 420, 114 S.E. at 627 (emphasis added). Rather, our Supreme Court so held

because the words used by Mrs. Seymour clearly evinced an intent that the power

granted would take effect immediately, during her lifetime:

             One of the essential elements of a will is a disposition of
             property to take effect after the testator’s death. . . .

             [However,] a written instrument to be a will must make
             some positive disposition of the testator’s property [or
             make an appointment of an executor or guardian of the
             testator’s minor children], and if it fails to do this, it is not
             a will and testament. . . .

             If under the instrument any interest vests, or if such
             interest fails to vest merely because of lack of delivery of
             the instrument, then it is not a will. In other words, if any
             interest either vests or is capable of vesting prior to the
             death of the maker, the instrument is not a will.



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Id. at 419-20, 114 S.E. at 627.

      Our Supreme Court further reasoned that the second sentence – “This also

constitutes my last will” – likewise was not effective in creating a valid will,

notwithstanding that Mrs. Seymour may have so intended. Id. at 420-21, 114 S.E. at

627-28. The Court reasoned that the word “This” could, at best, refer back to the first

sentence, but that, a document titled a “will” of a maker, which only makes

dispositions taking effect before the maker’s death, does not create a will:

             The clause “This also constitutes my last will” does not
             operate as a disposition of the maker’s property to take
             effect after her death, because the word “this” refers to the
             instrument in controversy, which is merely a power of
             attorney relating to the management of her property in her
             lifetime. Probably Mrs. Seymour intended to make a will
             and thought she had accomplished her purpose; but a will
             cannot be established by merely showing an intent to make
             one. Nor can this conclusion in any wise be affected by
             evidence offered to show that the alleged testatrix said “she
             wanted Fred to have what she had,” and treated the
             instrument as her will. . . .

             It is a settled principle that the construction of a will must
             be derived from the words in it, and not from extrinsic
             averment.”

Id. at 421, 114 S.E. at 627-28 (emphasis added) (internal quotation marks omitted).

      Ultimately, our Supreme Court concluded that there was no need to submit to

a jury whether Mrs. Seymour intended the document as a will: even if a jury so

determined, such determination would be meaningless to the case, as the language

used was unambiguous in granting the power to her husband during her lifetime. See


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id. at 421, 114 S.E. at 627-28 (noting that “[p]robably Mrs. Seymour intended to make

a will and thought she had accomplished her purpose; but a will cannot be established

by merely showing an intent to make one.”).

      In the present case, we conclude that a jury could reasonably infer from the

language that Mr. Worley intended the document to be his will. For instance, the

Holographic Document is titled “Last Will of Paul Worley.” We further conclude that,

unlike in Seymour’s Will, it would not be a waste of time to submit the issue to a jury,

as the language in the Holographic Document is sufficiently ambiguous to allow a

construction to effectuate a testamentary transfer of property.

      If the jury determines that Mr. Worley drafted the document with animo

testandi, that is, with testamentary intent, see In re Will of Mucci, 287 N.C. at 30, 213

S.E.2d at 210, then it could reasonably be construed from the language used in the

Holographic Document and perhaps from other competent evidence presented that

Mr. Worley intended to grant “Pat” with some power over his property to take effect

only after he died. See Institute v. Norwood, 45 N.C. 65, 69 (1852) (internal quotation

marks omitted) (explaining that a court, “under the maxim ut res majis valeat quam

pereat will try to give” meaning to every clause in a will). For instance, the language

could be construed an expression of intent to grant Pat with a power of appointment

over his property at his death, pursuant to Chapter 31D of our General Statutes. See

N.C. Gen. Stat. § 31D-2-201 cmt. (2017) (recognizing the appropriateness of



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conferring a power of appointment over one’s property in a will). Indeed, one could

reasonably construe from the language employed by Mr. Worley, presumably a non-

lawyer, that he wanted Pat to have absolute discretion to dispose of his estate in any

way she saw fit, so long as she did not give any of his estate to “Grace Price Worley.”3

Alternatively, it might be reasonable to construe the language as an expression of

intent to grant Pat with the power of an executrix over his estate. Or, it could be

determined that the language could be subject to reformation pursuant to N.C. Gen.

Stat. § 31-61 (2017) to change to language altogether to conform the language to Mr.

Worley’s true intent.4 (We do not express any opinion regarding any of these or other

possible interpretations. We simply express that there are ways to construe the

Holographic Document to give it testamentary meaning and effect, should a jury

determine the Document to be a will.)

                                         III. Conclusion

       We, therefore, reverse the Superior Court’s order directing that probate be

revoked, and we remand the matter for further proceedings. There is an issue of fact


       3   Of course, it could be reasonably construed that Mr. Worley did not intend to limit Pat’s
authority in the sentence regarding Grace, but that he was merely expressing a non-binding desire to
Pat that Pat not give any of the estate to Grace.
         4 It has long been the law of this State that a “patent” ambiguity could not be explained by

evidence outside the language of the will, and if there is no way to give language that is “patently”
ambiguous any meaning, then the language must be ignored. See Institute, 45 N.C. at 68 (explaining
the difference between patent and latent ambiguities). However, with the adoption of N.C. Gen. Stat.
§ 31-61 by our General Assembly, courts may consider any clear and convincing evidence to decipher
language that is even patently ambiguous, so long as the language is determined to be ambiguous in
the first instance. That is, Section 31-61 does not empower a court to reform unambiguous provisions
in a will.

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                                  Opinion of the Court



as to whether Mr. Worley intended the Holographic Document to be his will and,

otherwise, whether the Document meets the other statutory requirements of a

holographic will. The issues of devisavit vel non are for a jury to decide, not the

Superior Court as a matter of law at this point.

      Should it be determined that the Holographic Document is not Mr. Worley’s

valid will, then the Superior Court shall direct the Clerk to revoke probate. However,

should it be determined that the Holographic Document does meet the statutory

requirements of a holographic will (assuming those requirements are put at issue)

and that the document was executed with testamentary intent and is otherwise valid,

this estate proceeding shall continue, including the resolution as to the construction

that is to be given to the language contained in the Holographic Document.

      REVERSED AND REMANDED.

      Judges STROUD and BERGER concur.




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