71 So. 4 | Miss. | 1916
delivered the opinion of the court. >
This is an appeal from a decree of the court beloY admitting to probate three instruments as the will of Mrs. Fannie G-. Henderson, deceased. On the 30th day of April, A.. D. 1911, Mrs. Henderson executed a will, the only item of which reads as follows:
“Whatever property I may die seized and possessed of real or mixed wherever situate I will, and devise & bequeath to Julia E. Smith to take & enjoy the usufruct thereof for & during’ her natural life time, for the sole support & maintenance of herself & her sister Helen L. Sheffield both of the city of Norfolk, state of Virginia.” On the same day, Julia E. Smith executed a will by which she bequeathed and devised all the property that she might inherit from Mrs. Fannie G. Plenderson, to Newton IT., Frederick S., William IT., Francis G., George P., Henry L., and Finley B. Hewes. After the death of Mrs. Henderson there was found with her will a sealed envelope (addressed to “Miss M. S. Hewes — for Sophie to give Idie in case of my death [Signed] F. G. PI.”) containing the following letter:
“Pass Christian July 1st 1913
“My dear Idie: I am writing to you today fearing something might happen to me before I can get a deed properly drawn up, and sinned, and I feel confident that you will carry out my wishes.
“I desire that Sophie Tibblier shall at my death, be given the house, I have just built, and the furniture. The silver you can divide as you think best, also the house linen, and any pictures you wish. My clothes are not worth much and can be given to Lizzie. Also a hundred dollars when the estate is settled. The home place is for you four girls that is you, Lillie, Cora & Emma.
“I do not suppose this would stand in the courts, but there is no need of going to law. Later I will make a will. I only want to secure Sophie in case of my sudden ■death.
“Always Your loving Aunt
“Fannie G. Henderson.”
These three instruments were propounded in the court below for, and upon final hearing were admitted to, probate, the decree reciting that:
“After due consideration of all of the evidence in this case, and after hearing full legal arguments, the chancellor finds from the evidence:
“First. That the two writings designated as Exhibits A and C to the petition of proponents constitute the true and last will and testament of Fannie G. Henderson, deceased, and should be admitted to probate as such.
“Secondly. That the writing designated Exhibit B to said petition of proponents, and referred to as the ‘will of Julia B. Smith,’ was by adoption and implication made a part and is now a part of the true last will and testament •of Mrs. Fannie G. Henderson, deceased, and should be admitted to probate as explanatory of said will of Mrs. •Henderson and in aid of the. construction thereof — to which findings of the court the contestants excepted.”
The two questions presented to us for decision are: Should the court below have admitted to probate, first, the letter from Mrs. Henderson to Idie? and, second, the will of Mrs. Julia B. Smith as having been ‘by adoption and implication made a part’ of the will of Mrs. Henderson? The answer to the first of these questions must be in the affirmative, and to the second in the negative.
The letter directs what disposition the writer wished to be made of certain property after her death in event she
When an extrinsic document is incorporated into a will by a reference thereto in the will, it becomes a part and parcel thereof; and since a will not attested by witnesses must be “wholly written” by the testator himself, it necessarily follows that for an extrinsic document to be incorporated into and thereby become a part and parcel of a will valid only if “wholly written” by the testator himself, such document must also be so written; for should it not be, the whole will would not be in the handwriting of the testator. Gibson v. Gibson, 28 Grat. (69 Va.) 44.
Reversed and remanded.
