107 Pa. 381 | Pa. | 1884
delivered the opinion of the court, January 19th, 1885.
The sixth section of the Act of 8th April, 1833, P. L. 249, provides that “ every will shall be in writing, and, unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him, at the end thereof,” etc. The construction, which had been previously given to the Act of 1705, made this provision necessary; the plain purpose of the legislature, in requiring the signature of the testator to be written at the end of the will, was to assimilate wills, in the mode of their execution, to other instruments for the transmission of title, to furnish a more certain and satisfactory means of authentication, and thus to distinguish what might be mere incomplete memoranda, from that which certainly declared the full and final purposes of the testator respecting his property. That this was, at least, the primary and principal object of the statute of 1833, is abundantly shown, not only in the report of the commissioners, (Parke and J. 874), but in numerous decisions of this court since its passage: Strickler v. Groves, 5 Wharton 385; Hays v. Harden, 6 Barr. 409. It is the animus testandi, therefore, which is manifested by the testator’s signature to a will, and unless signing be prevented by an absolute inability the fact of a completed testamentary disposition cannot otherwise appear.
The will of George Baker is commenced upon the first and
It will not, we think, be seriously questioned notwithstanding the provisions of the A ct of 1888, that any relevant paper or writing, attached or detached, if there be no reasonable question as to its identity, or of its existence at the execution of a will, may be so referred to therein, as thereby to become incorporate with the provisions. No case in Pennsylvania has been cited by counsel, with the exception perhaps of Hauberger v. Root, 6 W. & S. 437, in which this rule is expressly asserted, nor in the somewhat hasty search we have made, do we find any, in which the precise point is presented, but in Isnland, and in the courts of some of the states, under similar statutes, the doctrine is distinctly declared.
In Habergam v. Vincent, 2 Vesey, Jr. 223, which was a case decided under the Statute of Frauds, Wilson, J., sitting with Lord Chancellor Loughborough, says: “ I believe it is true, and I have found no case to the contrary, that if a testator in Ms will refer expressly to any paper already written, and has so described it that there can be no doubt of the identity, and the will is executed in the presence of three witnesses, that paper, whether executed or not, makes part of the will; and such reference is the same as if he had incorporated it, because words of relation have a stronger operation than any other.” This case was followed In re Countess of Durham, 3 Curteis 866, and in many other cases, both in the civil and ecclesiastical courts of England, and it cannot be doubted that such was the rule in the authentication and probate of wills, under the Statute of Frauds. By the statutes of 7 Will. IV., and 1 Viet. c. 26, however, all previous provisions, as to execution and attestation of wills were repealed, and it was thereby enacted that no will should be valid, unless in writing and executed as therein provided, and one of the requisites was that it should be signed, at the foot or end thereof by the testator, or by some other person in liis presence and by his direction. In Willis v. Lowe, 5 Notes of Cases
In New York the Revised Statutes, inter alia, required that every last will and testament, of real or personal property, should be subscribed by the testator, at the end thereof. In Tonnele v. Hall, 4 Comstock 140, a will was written on several annexed sheets of paper, and was duly executed; a copy of a map was upon the last of the sheets, composing the instruments; it was referred to in the will, as being annexed, and for the description and designation of the several lots devised,
In our own state we find no case at variance with the doctrine of the eases stated; the rulings of this court on questions similar in effect and preliminary in their nature, to that under consideration, have, in every instance, been in conformity with the views here expressed. In Ginder v. Farnum, 10 Barr 98, it was held, that where a will is written on
Where, however, the continuity of a writing otherwise complete is attempted to be broken by the insertion into it of a clause or paragraph, written upon the same or a different page or sheet, the clause to be inserted must be plainly referred to and be susceptible also of certain identification. The reference must, as we have already shown, be complete in the body of the will. The testator’s intention cannot otherwise
A plain distinction is to be drawn between the case at bar and that of Hays v. Harden, 6 Barr 409; in that case there was no reference whatever in the paper purporting to be the will of John Hays, to the clause which followed; there was no word or mark in the body of the will indicating any intention of the testator at the time of execution that the appended, unattested clause should be drawn to and inserted at any designated place.
Referring then to the will of George Baker, we see that the several items contained in it are, in their order, from the beginning to the end of the disposition, consecutively numbered in Roman numerals; at the 4th item we find the following:—
“4. I give and bequeath to David S. Baker, our son, two hundred — see next page.”
The erasures in this 4th item are presumed to have been made before the signing and attestation, but they have some significance in this inquiry, inasmuch as the subject of the devise to David S. Baker is the only matter erased; the numeral, “4,” and the name of David S. Baker, the beneficial party under it, remain, a fact which is entirely consistent with, the idea that the error to be corrected by the erasure was as to the thing devised. The words which are not erased contain a clear reference to something to be found on the next page, something which is to constitute part of his will, otherwise the reference in that connection is without meaning and something to be inserted at the place of the reference. This is as apparent as if it had been fully expressed in as many words.
In the Goods of Birt, 24 L. T. R. 142, the will of Charles James Birt, after a devise to the testator’s wife for life, contained the following: “With the full understanding, that the four free-bold cottages, situate at Finchley, in the county of Middlesex, and called by name, and known as Nos. 1, 2, 3 and 4 Arlington Cottages, * (see over, C. B.),”
Upon tlie back of the will there was written :
“ *' that the said four cottages, at her decease, should be given, and shall then belong to my daughters, Ellenor and Elizabeth, now the wife of Mr. Cuthbertson, and the said four houses to be her own property and under her own sole control.
Charles Bert.”
It was shown, by parol, that the words on the back of the will were written there by the testator before be signed the will; they were not attested, however, by witnesses, as*394 the «English statute required ; indeed, the witnesses knew nothing of it. Lord PbnzANCE, in admitting this will to probate, says: “I have rio hesitation in sa3ring, that the words written at the-back of this wrill ought to be included on the probate; the reason and good sense of the thing are in the same direction. The clause in the will has no meaning without these words — it is a sentence without any sense begun but never finished. The testator, at the end of this unfinished part of the will, puts a mark, and at the back of the will he puts a corresponding mark before certain words which finish the sentence. It is obvious, therefore, that if all this was done before the will was executed, the testator intended that which was physically on the opposite side of the page to be read in, as if it preceded his signature. It is therefore intended to be part of the will. It will be better, therefore, in construing the words of the statute, to treat these words as if they preceded the signature, although they seem to follow it.”
So in this case, without the insertion of something the fourth item is without meaning: “it is,” in the language of Lord PENZANCE, “ a sentence without any sense, begun but never finished.” It purports in the outset, as the fourth item of the will, to contain a devise or bequest to David S. Baker, but by the erasure, it is broken off abruptly, before the disposition is completed. It is apparent that, in the body of the will, there was not room for completion, and therefore reference is made to the next page. This reference is clear in its purpose and specific in its terms, neither can be mistaken. If the word's “ For the fourth item of this will, containing a devise to David S. Baker, see next page,” had been employed, they would not convey a more specific meaning than is conveyed by the words and figures actually employed. That the testator’s intention was to incorporate into his will, bj’ insertion at the place indicated, something to be found on the next page, is perfectíy apparent arid obvious; no one in reading the instrument could doubt the testator’s purpose in this respect.
The physical annexation of the pages, taken with the uncon-tradicted proof, affords the clearest and most satisfactory evidence of identification. The “next page” of the folio cannot be mistaken, and referring to it, we find a clause thereon written, in the same hand, in the form following:
“ 4th. I give and bequeath to our son, David S. Baker, our son, two thousand, to be paid in rotation of numbers. I give and bequeath to our grandchildren, Margaret Baker and George Baker, daughter and son of David S. Baker, five hundred dollars each, to be paid in rotation, in rotation, to*395 Lewis J. Baker, whom I appoint guardian for the same. .Also I appoint the same as guardian for G. M. Baker’s two girls Viola and Ella.”
It is true that this writing contains more than a devise to David S. Baker, but this, we think, is not important, as its identification as an entirety is put beyond question. We are of opinion, therefore, that by force of the reference in the body of the will of George Baker, and the clear identification of the matter referred to, the writing on the fourth page is, ipso facto, drawn into the body of the will, and constitutes the fourth item or clause thereof; and although the instrument, thus formed, is not signed by the testator at the end thereof, in point of space, it is signed at the end of the will, in point of fact, which is in conformity with the requirement of the Act of 1833.
The decree of the Orphans’ Court is therefore reversed, and it is ordered that the decree of the Register be reinstated.