Barney v. Hayes, 11 Mont. 571

Barney v. Hayes

11 Mont. 571 | Mont. | 1892

De Witt, J.

The Probate Practice Act (§ 22) provides: “The jury, after hearing the case, must return a special verdict upon the issues submitted to them by the court, upon which the judgment of the court must be rendered, either admitting the will to probate or rejecting it.”

It is not disputed that the original will was properly executed, .and was, before the marriage of the decedent, a good and valid will. It is conceded that the marriage of decedent revoked that will. (§ 459, p. 384, Comp. Stats.) It is clear that, if the letter of the decedent is a codicil to said will, it republished the will, and that the will and codicil together constitute the last will and testament of the decedent. (§ 448, p. 382, Comp. Stats.) The letter referred to the previous will. The whole gist of the case, therefore, is whether said letter was a codicil; that is, whether it was testamentary in character. The court submitted to the jury a great number of questions, which seem to have included all matters of fact in the case. The court also required the jury to determine whether said letter was a codicil. The jury said that it was. The court set aside this finding, and held that the letter was not a codicil. The respondent now contends that this finding of the jury was a conclusion of law, and that the court was not bound thereby, and that such finding was practically a nullity. Appellant contends that the court was bound by all the findings of the jury, and that it was error to set them aside. The court certainly submitted all the facts to the jury. It looks as if a large portion of the law as well had gone to the jury for determination, and that the court was then dissatisfied with the jury’s view of the law.

*575But passing this anomalous condition of affairs, and disregarding the submission of law to the jury, we will decide this appeal upon the following view: The facts are all found. The findings have never been attacked. We take them all as true. On these facts, did the court correctly construe the letter from the deceased to his attorney? That is to say, we will proceed to determine whether the said letter was, under the established facts, a codicil, and testamentary in character.

It is claimed that the letter is an holographic will or codicil. The statute provides as follows: “ Sec. 439. An holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this Territory (State), and need not be witnessed.” “Sec. 19. An holographic will may be proved in the same manner that other writings are proved.” It is perfectly clear from the findings that this letter fulfills every requirement of the statutes, supra, as to the execution and proof.

The only question remaining is whether it is testamentary in character. A decision of this point was reserved on the former appeal of this case.

“A will is an instrument by which a person makes a disposition of his property, to take effect after his decease.” (1 Jar-man on Wills, 26, and notes.)

" A last will and testament may be defined as the disposition of one’s property, to take effect after death.” (1 Bedfield on Wills, 5.)

“Swinburne defines a 'testament’ to be a'just sentence of our will, touching that we would have done after our death.’ ” (Turner v. Scott, 51 Pa. St. 132.) Woerner, in the American Law of Administration, expresses the same views. (Ch. 5.)

The decedent in this case, in the letter in question, announces his marriage, and then writes: “ What I want is for you to change my will so that she [his wife] will be entitled to all that belongs to her as my wife. I am in very poor health and would like this attended to as soon as convenient. I don’t know what the laws are in Montana. I don’t know what ought to be done, but you do.”

Do these words disclose an animus testandif

*576The writer expresses his wish that his wife shall have something. The reasonable construction of the letter is that he-wished her to have a certain portion of his estate after his-death. His intent may be expressed by the word “want,” which he uses, or “wish,” or “desire,” as well as by the words “command” or “direct.” . (Busby v. Lynn, 37 Tex. 150.) To-be sure, what the decedent wrote was that he “wanted his will changed.” It is argued that it was not changed. But did not this letter change it? The original will was the expression of his intention, on June 15, 1889, as to the disposition of his property after death. That was his “ will,” using that word in its original sense of “intent,” “desire,” or “command.” Now, on August 18, 1890, he had another “will” or “intent” or “desire.” That later “will” or “intent” or “desire” he clearly expressed in his letter of that date. That letter was, using the old definition, “ his just sentence of his will touching what he would have done after his death.” Can any one read the decedent’s letter and be in any doubt as to what he intended should be the disposition of his property as to his wife? We think not. Such holographic will need not be in any particular form. (§ 439, Prob. Prac. Act.) If the decedent’s intention is clear, that intent must not be ignored because the language is not technical. The expression of decedent’s intention is as clear as that in the case of Estate of Wood, 36 Cal. 75; or in the case of Succession of Ehrenberg, 21 La. An. 280; 99 Am. Dec. 729. In the latter case the holographic’will was as follows:—

“New Orleans, September 15, 1859.

“Mrs. Sophie Loper is my heiress. G. Ehrenberg.

“ The legatee’s name is correctly spelled Loeper.

“G. Ehrenberg.”

On the back of this instrument is written the following: “ Ehrenberg’s will, to be opened by S. B. Patrick, who will see it executed. A copy of this will is left in the hands of the heiress.” (See, also, Clarke v. Ransom, 50 Cal. 595, and authorities cited; also Robnett v. Ashlock, 49 Mo. 171; Morrell v. Dickey, 1 Johns. Ch. 152, opinion by Chancellor Kent; Cowley v. Knapp, 42 N. J. L. 297; Byers v. Hoppe, 61 Md. 206; 48 Am. Rep. 89.)

*577No motion for a new trial was made in the case at bar. The findings of fact were not attacked. Whatever the jury may have found as to the law we do not consider. But we are of opinion that when the District Court had before it the facts found, the court should have concluded that those facts established the letter in evidence to be a codicil. The judgment is therefore reversed, the cause is remanded, and the District Court is directed to admit to probate the will of June 15,1889, with the said letter of decedent as a codicil: the two writings together constituting the last will and testament of said Charles E. Barney, deceased.

Reversed.

Blake, C. J., concurs; Habwood, J., being disqualified, did not sit in this ease.