Baker v. Brown

83 Miss. 793 | Miss. | 1903

Whíteteud, C. J.,

delivered tbe opinion of tbe court.

It may be accepted as true from tbe finding of tbe jury that tbe caption of tbe will consisting of tbe two words, “My Will,” were not written by tbé testatrix. Tbe instrument probated as tbe will is in tbe following words:

"MY WILLr

“Stamps LANDING-, July 26th, 1903.

“1 Want Eliza Baber to have all I own at my death and carry out my wishes tbe best she can. Let everything stand as I leave it. Give each heir $5.00 for me. E. H. Babkxey.”

All of this instrument, except these two words, “My Will,” were written by tbe testatrix, according to tbe overwhelming weight of tbe evidence. In other words, tbe whole paper, except tbe two words specified, was wholly written, dated, and signed by tbe testatrix. On this state of tbe testimony tbe court gave the following instruction for tbe defendants:

“Tbe court instructs tbe jury for tbe defendants, that unless tbe jury believes from tbe evidence that tbe paper offered here, in evidence, as tbe will of Mrs. E. H. Barkley, was wholly written and signed by her they must find for tbe defendants, although tbe jury may believe from the evidence that all of tbe will was written and signed by her except one word, and in establishing said will tbe burden of proof is on tbe plaintiff; consequently if they believe that tbe evidence is evenly balanced they must find for tbe defendants.” Was this instruction erroneous? Or to put it in clearer light, perhaps, were the two words, “My Will,” constituting tbe caption, pure surplusage? What remained contained tbe dispositive part of tbe will, and was in itself an entire, complete, and perfect holographic will. It is doubtless true that tbe utmost strictness prevails in requiring holographic wills to be Wholly written by tbe testator. Perhaps that view has nowhere heén better expressed than by Judge Eenner in Succession of Armant, 43 La. Ann., 314, where tbe court says:

“We were at first much impressed with tbe clear proof made, that tbe deceased intended tbis paper to be ber testament. Bnt there is no more doubt that sbe intended tbe invalid nuncupa-tive codicil- to be ber testament. Tet as tbe latter was attested by women wbo are incompetent testamentary witnesses, no one claims its validity. 'And so if tbe holographic will is not signed as required by law, ber intentions cannot save it. Tbe question is not whether sbe intended tbis paper to be ber will, but whether it is a will clothed with tbe form of law. An'holographic, like every other testament, is a solemn act. It matters not bow clearly it conveys tbe last wishes of tbe decedent, if it is not clothed with tbe forms prescribed it is null.” We cite also as illustrative of tbis strictness Estate of A. C. Rand, 63 Cab, 468; Warwick v. Warwick, 86 Va., 602.

This last case, however, aids tbe view we take in tbis case, since it held that tbe words “My Will, Abram Warwick, Jr.,” endorsed on tbe envelope containing tbe will within, did not constitute a signing of tbe will so enclosed. In other words, tbe court held that tbe inscription on tbe outside of tbe envelope was no part of tbe will within tbe envelope. It has been held on the other band, that a holographic will is none tbe less a holographic will because it may be attested by witnesses. Speaking to tbe point tbe court says in Re. Soher, 78 Cal., 479: “Tbe witness clause is not, under tbe circumstances, to be considered as a portion of the will which is no more affected by it than any other document which does not require attestation, such as a deed or contract would be. And it seems to us that courts should presume that tbe intention of tbe testator was that of a reasonable and prudent man under tbe circumstances, and should not adopt a somewhat strained construction to defeat what, there is every reason to believe, was tbe desire of tbe testator.” And to tbe same effect tbe supreme court of North Carolina says in Harrison v. Burgess, Hawks Law and Equity, vol. 1, page 393: “As to tbe third objection that it is not a will under tbe act'of April, 1784, there can be no weight in it. Tbe signature, of subscribing witnesses is no part of the will. The witnesses, put their names there to be enabled to identify the paper,, and where the law requires subscribing witnesses it is for the same purpose. Originally the witnesses did not put their names to the paper, but Mis testibus was added by the parties concerned, that they might know on whom to call in case of a dispute. The will is not certainly worse by having one subscribing witness, it will certainly answer the purpose of more certainly showing that this is the paper which she saw deposited in the bureau; going beyond the requisitions of the act, in respect of proofs, certainly cannot annul that which comes up to them.” See also generally the 29th volume Am. & Eng. Ene. Law (1st ed.), page. 127 through page 130, text and notes.

We might rest'our decision on the .'single proposition supported by these authorities, that the words, “My Will,” are a mere caption, and constitute no part of the dispositive portion of the will, but we have a much stronger and more direct authority still sustaining our view. The supreme court of Louisiana,, in the case of McMichael v. Bankston, 24 La. Ann., 451, speaking to this point, says as follows:

“The four .plaintiffs as- witnesses state that the will was entirely written, dated, and signed by the hand of the testator except the word To’ in the sixth line from the top, and .the word 'acres’ in the eighth line, which was in a different hand. Another witness and two experts express the same opinion. The original will is before us, and it is evident that there is some difference in the appearance of those two words from the balance of the writing. But it is very manifest that the presence, or absence of the two words can have no material, effect upon the' meaning or contents of the will. Without them, the sense is the same as with them, the- whole will showing that the testator bequeathed 'to’ his wife a certain.number of facres’ of lapd. In another place there is a connected and rational repetition of this bequest in which the game two words are written by the testator. Admitting,- therefore, that the two words in question were added by the band of another, we may safely, under the first clause of Article 1589, B. C. 0., consider them as not written, and not impair the validity or effect of the will.’ We cannot say that the law requires a will to be annulled for so unimportant and trivial a cause.”

Here, manifestly, the words “to” and “acres” were words in the dispositive part of the will, and they were not written by the testator, but it is just as manifest that they were so. clearly sur-plusage as to leave the will’s meaning without them precisely what it meant with them, and so the court held that, although in the dispositive part of the will, the fact that they were not written by the testator could not defeat the will, unless without them the meaning and purpose were in some manner materially affected.

We think this is a perfectly sound viéw of this matter, and it follows that the giving of the instruction was fatal error.

Reversed and remanded.