190 Pa. 382 | Pa. | 1899
Opinion by
This case is of a highly exceptional character. In all ordinary cases of this kind the contest arises upon the question whether an informal or irregular paper or collection of papers constitute the last will and testament of a deceased person. It is then a question of testament by the papers presented as such, or of no testament at all, and the contest is necessarily conducted upon the manifest theory that the deceased at least tried to make a will, and deserved assistance from the court or jury if it was reasonably practicable to give it to him. But in tills case there is no such condition of things. This decedent had made and executed a formal, carefully prepared and undoubted last will and testament. It was written and rewritten several times, after numerous interviews and consultations with Ills attorney, Mr. Stevenson. To him the testator explained with the utmost minuteness and detail just what he wanted to go into the will. Mr. Stevenson testified: “ I think I wrote it three or four times before I got it the way he wanted it. Q. Did he take away the documents as you prepared them and study them over and mark them? A. Yes, sir; he took them away and he had it marked, and he would say, that will not do; put that in, and I would put that in, and he would take it away, and he would bring it back again arid have something else marked, and say that will not do and put it in, until finally he got the will such as it is. ” The witness had previously explained that Dr. Jacoby wrote the will himself in the first instance, but that he was not a good scholar, and could not spell very well, and he brought it to the witness for final preparation. But at last it was completed to the satisfaction of the testator, and then he executed it formally in the presence of two subscribing witnesses. This occurred on January 22, 1894. But on February 3,1894, only twelve days later, he executed a codicil also formally prepared, and signed in the presence of two witnesses, in which he made a change in an important provision
Immediately after the death of the testator two tin boxes which were in the vault of the Metropolitan National Bank were delivered to the executors, and were opened by them and an inventory of the contents was made. The larger box contained bonds, certificates of various stocks, receipts and some other papers constituting practically the whole of the decedent’s personal estate. The smaller box contained some silverware and daguerreotypes of small value. On the outside of the larger box there was pasted a small paper containing the following words, “ In case of my death, I want this box given to my attorney, A. K. Stevenson, 439 Grant St. G. T. Jacoby.” Within this box there was a variety of papers. Sixteen of them were envelopes containing numerous individual papers of different characters but chiefly certificates of mining stocks. There were also receipts given by Geo. B. Hill & Company for certain traction stocks and Air Brake stocks standing in their name on the books, but being the property of Dr. G. T. Jacoby. There were also other receipts and a mortgage for §10,000 and some promissory notes. In addition to the foregoing, there were
The envelope marked “ No. 2 ” had in it a quantity of old tax receipts from 1866 to 1887, and the words written on tiro outside were “ Tax receipts from 1866 to 1887 ” and “ Geo. T. Jacoby, 439 Butler St., Pittsburg, Pa.”
The envelope marked “No. 3 ” had on it the printed words, “Baxter, Thompson & Co., 161 Fourth avenue, corner Grant street, Pittsburg, Pa.” and written in ink the words “ This goes to Miss Mary Gress, 228, 42nd street, Pittsburg Pa.,” and also in the corner the written words, “ Twenty Tarentum Bonds.” Inside the envelope were twenty bonds of the borough of Tarentum, each in the sum of $500, payable to bearer, with interest at five per cent.
The envelope marked “ No. 4 ” had on it the written words, “Roselia Maternity Hospital Pittsburgh,” and on the inside were certificates amounting to 854 shares of Mayflower Gold Mining
The envelope “No. 5 ” had on it the written words, “Home for the Friendless Allegheny City,” and on tlie inside were certificates for 684 shares of the Mayflower Gold Mining Company in the name of G. T. Jacoby, with the blank transfer signed by Geo. T. Jacoby and duly witnessed.
The envelope “ No. 6 ” had on the outside the written words “ This is to go to Geo. B. Hill & Co. 1,400 shares. To Frederick Sermin 150 shares. To Geo. H. Henderson 150 shares,” and in lead pencil the words, “1,700 Emmens Metal shares.” On the inside were certificates for 1,700 shares of the Emmens Metal Company of the par value of $10.00 each, all issued to G. T. Jacoby.
The envelope “ No. 7 ” had on the outside the business card of Geo. B. Hill & Company printed on the corner, and the written words, “ This is to go to Mrs. Mary Downs and her family, Greenville, Mercer County, Pa.” On the inside there were certificates, No. A 370 of the Citizens’ Traction Company for ninety shares, of the par value of $50.00 each, issued to Geo. B. Hill & Company with the blank transfer on the back executed by Geo. B. Hill & Company; also certificate No. 541 for fifty-eight shares of the Citizens’ Traction Company, of the par value of $50.00 each, issued to Geo. B. Hill & Company, with the transfer duly executed by Geo. B. Hill & Company; also certificate No. 645 of the Citizens’ Traction Company for 100 shares of the par value of $50.00 each, issued to, Geo. B. Hill & Company with transfer duly signed by that firm; also certificate No. 646 for 100 shares of the same stock and same par value issued to Geo. B. Hill & Company, with transfer duly executed; also certificate No. A 1,310 for thirty shares of the same stock, same par value, issued to Geo. B. Hill & Company, and transfer duly executed; also certificate No. 197 for twenty shares of the capital stock of the Ewalt Street Bridge Company, of the par value of $50.00 each, issued to Geo. B. Hill & Company, and transfer duly signed; also trustee scrip certificate for seventy shares in certain real estate remaining in the hands of Charles M. Gormley.
The envelope “ No. 8 ” had on the outside the written words,
The envelope “No. 9 ” had on the outside the printed words, “ The Metropolitan National Bank Pittsburgh, Pa.” and the written words, “ This goes to Mrs. Mary Downs, Greenville, Mercer County, Pa.,” and below the words inclosed with a bracket “ or her family.” And in lead pencil were the words “770 W. A. B. American.” On the inside were found certificates for 770 shares of the capital stock of the Westinghouse Air Brake Company, par value $50.00 each, issued to Geo. B. Hill & Company, with transfers duly executed bjr that firm.-
The envelope “ No. 10 ” had on the outside the written words “A. K. Stevenson, Sr. or Jr. No. 439 Grant Street, Pittsburg.” On the inside were certificates for 726 shares of the Mayflower Gold Mining Company, par value $1.00 each, issued to Geo. T. Jacoby, and transfers duly signed by him.
The envelope “ No. 11 ” had on the outside the words, “This to go to the G. T. Jacoby Protestant Orphan Belief Fund, the net income arising therefrom,” and in pencil the words, “833 W. A. B. C.” On the inside were contained certificates for 883 shares of the Westinghouse Air Brake Company, Limited, of the par value of ten pounds each, issued to George Burton Hill, with transfer duly signed.
The envelope “ No. 12” had on the outside the written words “Mrs. E. Murray’s Will copy.” And on the inside was a copy of the will of Mrs. Murray.
The envelope “ No. 13 ” had in it some fire insurance policies.
The envelope “ No. 14 ” had on the outside the written words, “Aughenbaugh notes.” On the inside were found a package of notes, some stubs of check books, letters and copies of old pajDers of no value.
The envelope “ No. 15 ” had on the outside the printed words “ City Treasurer’s Office, Pittsburgh, Pa.,” and was addressed to Dr. G. T. Jacoby, having apparently gone through the mail. It had also the written words, “ Standard Underground Cable.” On the inside were found two certificates of fifty shares each of The'Standard Underground Cable Company stock, par value $100 each, issued to Geo. B. Hill & Company and transfers duly
Tlie envelope “No. 16” bad written thereon the words “La Noria” and in pencil, “ 7200 shares.” These certificates were of the par value of #25.00 each, and were issued to Geo. B. Hill & Company, with transfers duly signed by them.
There, were also in this box a number of old deeds, mortgages, agreements, and a bank book of the Lawrence Bank of Pittsburg, also some memorandum documents, but all seemingly of no value.
Tlie foregoing is a statement of tbe contents of the larger box, marked “Exhibit No. 2.”
The smaller box, marked “ Exhibit No. 1,” whieb contained some silverware, daguerreotypes and a few articles of jewelry, had pasted on its outside a small piece of paper on which wore the following written words, “ This box belongs to Mrs. Mary Downs — mustn’t be opened, only by lier. Children, this is nay will, G. T. Jacoby.” On the inside of this box was found another paper which contained the following words, “Mary 1 want you to divide the contents of this box between your children which is just living when it falls in your hands. I hope you will carry it out to the letter. G. T. Jacoby.”
Oil tbe hearing before tlie register, that officer made a decree declaring that the two boxes with the writings appearing thereon, tlie writing found in the smaller box, marked “ Exhibit No. 1,” and all tbe contents of both boxes were testamentary in tlieir character, and together constituted the last will and testament of George T. Jacoby. He made this decree upon tlie distinct ground that “ the above recited testamentary writings were executed by tbe said George T. Jacoby, deceased, as and for his last will and testament, at a date subsequent to the date of the execution of the will and codicil heretofore probated ; to wit, subsequent to the date of the 3d day of February, 1894, and on or about the 13th day of February.” By tlie regularly executed will of the testator the Safe Deposit and Trust Company of Pittsburg and A. K. Stevenson were appointed executors. By the decree of the register, A. K. Stevenson was
We have considered the contention involved in this cap.se with great care, with much patience and with the closest attention. We have heard two full arguments made by experienced and able counsel, and we have examined all the adjudicated cases which are supposed to sustain or justify the ruling of the court below, as well as those to the contrary effect. Having, as we do, a positive statute which declares, expressly, 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,” and appreciating the enormous consequences which may flow from a disregard of this most wise and judicious enactment, we feel constrained to say that we cannot but regard the decision of the learned court below as a most grave and serious departure, not only from the letter and the substance of our statute, but also from the adjudications we have heretofore made upon this subject. Entertaining as we do the greatest respect for the learning and ability of the distinguished jurist who ruled this case in the
In the first place we fail to discover any compliance with the requirement that the alleged testamentary writing shall be signed by the testator at the end thereof. It is claimed that the signature, “ G. T. Jacoby,” appended to the words written on the piece of paper pasted on the larger of the two boxes in evidence, is a compliance with the statutory requirement. If this writing contained words of a testamentary character there would be plausibility, and might be controlling force in this contention. But to us it is entirely clear that there are no words of that character in the writing. It must be remembered first that the box contained numerous papers and evidences of property interests belonging to the decedent. They have all been described in the enumeration hereinbefore set forth. They constituted practically the entire evidences of the ownership of the testator’s personal estate. It must be also borue in mind that Mr. A. K. Stevenson was and had been for some years the confidential attorney of the deceased. He had written Mr. Jacoby’s will after numerous consultations. He was appointed one of the executors of the will and would, therefore, be the proper custodian of the box and its contents after the testator’s death. It was necessary that some person should be intrusted with such custody at once upon the death of the testator. Now the written words appearing on the box were these, “In case of my death I want this box given to my attorney A. K. Stevenson 439 Grant street, Pittsburgh, Pa. G. T. Jacoby.” Upon the legal meaning of these words depends the entire ruling of the court below. If they constitute the execution of a testament they could be treated as a necessary part of a will. But if not of that character the whole fabric of the decision of the court below falls to the ground. There is nothing else upon which it can stand, or upon which it is claimed it can stand. There is no other signature of the deceased, anywhere, upon any paper or other substance, which has the least connection with the testamentary disposition of the contents of this box except the formal will of January 22, 1894, and its codicil of February 3,1894, duly executed by the testator and properly attested. The absolute fate of the controversy depends upon
Can it be necessary to argue that these words do not and cannot make a will? Of course they do not. It is too plain for argument. Had there been any words which directed Stevenson to do anything with the contents, such as to deliver the envelopes which had names on them to the persons named, or to see that the contents were properly distributed, or words of a similar import, it might be that a testamentary intent might be attributed to them. But there is absolutely nothing of the kind. On the contrary, there is a most momentous, vital fact in absolute hostility with any inference of even a possible testamentary intent being contained in these words, and that is the fact that Jacoby had already executed a full, complete, carefully prepared and properly executed written will, in which his whole testamentary purpose was most fully and circumstantially declared. And not only that, but it was also the fact that that will was prepared by the very person to whom the custody of the box was committed, and not only that, but it was the further
There was no other testimony than the foregoing as to the making of the signature. There is no proof whatever that in point of fact the signature was made at any time after the execution of the will. On this subject the learned judge of the court below said in his opinion: “ It will be seen that neither indorsement on the box nor the envelopes has a date. The proof shows that the direction on the top of the box had been there long before the date of the will already admitted to probate, but it does not appear when the signature was attached. The presumption arising from the use of pen and pencil is that they were written at different times; and the signature being at the end must be presumed to have been made last; but whether before or after the date of the will already probated, does not satisfactorily appear.” There is therefore no finding and no proof that in point of fact the signature was made after
The argument that the signature was made after the will was executed because some of the papers contained in the box bore dates later than the will is entirely untenable. It was fully proved that the testator had constant access to the box, and continued to take out and put in any papers he chose up to the time of his death. There were quite a number of such papers. The certificate for thirty shares of Citizens’ Traction stock was dated February 13, 1894. The certificate for twenty shares of stock of the Ewalt Street Bridge Company was dated March 11, 1894. The two certificates of fifty shares each of Standard Underground Cable Company were dated July 3,1894. These were found in envelope No. 13, on which the only words written were “ Standard Underground Cable.” In the same envelope was found a receipted bill of Geo. B. Hill & Company, dated April 6, 1896. In the envelope No. 1 was found a receipt signed by Geo. B. Hill & Company, dated February 13,1894, certifying to the ownership by Geo. T. Jacoby of a large number of valuable shares of stock which stood in the name of Geo. B. Hill & Company. There was also another receipt for other stock, certifying that 833 shares of Westinghouse Air Brake Company, Limited, of London, England, standing in the name of Geo. B. Hill & Company, and 7150 shares of La Noria Mining Company, in the same name, were the property of Geo. T. Jacoby, and this receipt is dated February 13,1894, just ten days after the formal written codicil was executed. On this envelope the only written words were “ Dr. Geo. T. Jacoby.” In the envelope No. 1 there were also certificates for 933 shares of East Mayflower Gold Mining Company, all issued in the name of G. T. Jacoby, one of them dated January 12,1894, only ten days before the date of the will, one dated February 3,1894, the very day on whi ch the codicil was executed, by which codicil the legacy to Mary Downs’s children was cut down from one half to one fourth of the income of the residue of the estate. And the other certificate was dated February 9, 1894, only six days after the date of the codicil.
The technical question still remains, is there a written will, signed at the end thereof, to be found in the testimony in this case other than the one regularly executed ? The only pretense of such a will is the box and its contents, with the direction to deliver the box to Stevenson, signed by the testator. For the reasons already set forth, we are most clearly of opinion that there is no such writing as the law requires.
But there is another and most convincing line of reasoning that leads to the same result. The ruling of the court below was that the two boxes and all their contents were of a testamentary character. The inclusion of the contents was a necessary consequence of the ruling that the written direction to deliver the box to Stevenson was the lawful execution of a testament. If it was lawful as to some of the contents it was lawful as to all. And hence the decree specifically included all the contents. The circumstance most relied on was the indorsements made upon the envelopes. An examination of these indorsements will develop some curious results. Thus, the envelope No. 1 contained the certificates for about 15,000 shares of stock, a mortgage for $10,000, a certificate that 378 shares of Citizens’ Traction stock, seventy shares of Citizens’ Pass. Ry. stock, twenty shares- of Ewalt St. Bridge stock, 770 .shares of Westinghouse Air Brake stock, standing in the name of George B. Hill & Company, were the property of George T. Jacoby, and a similar certificate as to 833 shares of Westinghouse' Air Brake Company, Limited, of London, and 7,150 shares of La Noria Mining Company stock.
Under the ruling of the court below, to whom does all this property belong under this alleged will ? The only name, and indeed the only writing on the envelope which contains all these papers, is “Dr. G. T. Jacoby.” The reasoning of the court is that the contents of the envelope belong to the persons whose names are written upon the envelopes. If this is correct the .entire .contents of envelope No. 1 belong, under this peculiar
The contents of envelope No. 2 were a large quantity of old tax receipts. There was no name and no direction on the envelope, and the nature of the contents precludes the possibility of a testamentary intent as to them.
The contents of envelope No. 12 were a copy of the will of Mrs. E. Murray. On the outside were written the words, “Mrs. E. Murray’s Will-copy.” As a matter of course the testator could not possibly have had a testamentary intent as to this envelope.
The contents of envelope No. 18 were some fire insurance policies. There was nothing in the testimony to show whether they were living or dead policies, but as the envelope had neither name nor direction on it there could not have been any testamentary intent as to it.
The envelope No. 14 had on it the words, “Aughenbaugh notes,” and it was addressed to Dr. G. T. Jacoby, as if it had gone through the mail. The contents were a package of notes, some stub check books and letters and copies of old papers seemingly of no value. There was no name or direction on the envelope and hence it is not possible that the testator could have had any testamentary intent as to it. The contents of envelope No. 15 were two certificates of fifty shares each of Standard Underground Cable Company of the par value of $100 each, a collateral note of Geo. B. Hill & Company for $5,000 on fifty shares of the same stock, as collateral, and a receipted bill of Geo. B. Hill & Company, dated April 6, 1896, which was about twenty-two days before the death of the testator. This envelope had an indorsement in writing upon it, to wit: “ Standard Underground Cable,” and upon the reasoning upon
The envelope No. 16 had nothing on the outside except the written words “La Noria” and, in pencil, the figures and word, “7200 shares.” The contents were certificates for 7,200 shares of La Noria Gold Mining stock. There is no evidence to show that there was any .living person named La Noria, and as it would be absurd to suppose that the testator intended to give the shares to the company of that name, we must conclude that as to this envelope and its contents the testator had no testamentary intent through the medium of the box and its written direction. There was also found in this box a lot of old deeds, mortgages, agreements and a bank book of Lawrence Bank of Pittsburg, also some memorandum documents of old dates, and without value. They were adjudged testamentary by the decree, because they were in the box, but as it is simply absurd to regard them in any such light we can only reach the conclusion that the testator exercised no testamentary intent as to them, by inclosing them in the box and directing it to be delivered to ¡Stevenson.
We are clearly of opinion that what has thus far been said demonstrates the error of the adjudication that the box and its contents, together with the direction to deliver it to Stevenson, constituted a testamentary act, or furnished any evidence of a testamentary intent, as to a very large part of the testator’s estate. But the facts upon which that adjudication was founded are precisely the same as to the entire contents. That is to say, the indispensable writing and signature and the inclosure are all the same. If an inspection of the contents conclusively shows that, as to a large portion of them, there could not possibly have been a testamentary intent, either in using the box as a receptacle of the papers, or in writing and signing the direction to deliver it to Stevenson, there can be no logical or legal conclusion from those circumstances that there was any testamentary intent as to any of the contents. In order to make out a legitimate testamentary intent as to a portion of the eon-
As to some of the envelopes, there is nothing on them but a name without any direction whatever as to the contents. Thus, on envelope No. 4 the words “ Rosalia Maternity Hospital Pittsburgh” alone are written. Upon envelope No. 5 there is noth' ing written but the words “ Home for the Friendless Allegheny City.” Envelope No. 8 had on it only the words “ Frederick Seebick, Pittsburgh.” Upon envelope No. 10 there were only the words “A. K. Stevenson, Sr. or Jr. No. 439 Grant street, Pittsburgh.” Upon envelope No. 15 were the words “ Standard Underground Cable,” and on envelope No. 16 the only words were “ La Noria ” and “ 7200 shares.” As to none of these envelopes or their contents is there the least expression of a testamentary intent on the box or on the envelopes or any where else, and it is simply impossible to believe that as to the last two there could have been in the mind of the testator any testamentary thought or purpose, yet all of them have been adjudged as such. It is almost equally impossible to believe that the testator meant to give the contents of envelope No. 8 to “ Frederick Seebick Pittsburgh” or of envelope No. 10 to “A. K. Stevenson,” as neither of them was named as a legatee in the will, nor is there any extrinsic proof of such a purpose, except the ridiculous facts appearing in the testimony of Stevenson as to helping himself. There are but five envelopes out of the whole sixteen as to which it can be contended that there was any actual expression of a possible testamentary purpose written upon the backs of them. These are No. 3, on which were written the words, “ This goes to Miss Mary Gress 228, 42nd St. Pittsburgh, Pa.; ” No. 6, on which were Avritten the Avords, “ This is to go to Geo. B. Hill & Co. 1,400 shares. To Frederick Sermin 150 shares ; to George H. Henderson 150 shares; ” No. 7, on which were written the Avords, “ This is to go to Mary Downs and her famfiy, Greenville, Mercer County, Pa.; ” No. 9, Avhioh had on it the words, “ This goes to Mrs. Mary Downs Green-ville Mercer County, Pa. or her family; ” No. 11, oil which were
It cannot bo known at this time whether it is or will be claimed that the words written on the envelope No. 6 were intended to operate as a bequest to Geo. B. Hill & Company, of 1,400 shares of Emrnens Metal Company stock, to Frederick Sermin of 150 shares and to George H. Henderson of 150 shares each of the same stock. They wore not named at all in the will; they were evidently business persons with whom he had business relations, and it is entirely probable that at the time the indorsement was written upon the envelope he had some reason for directing the delivery of the certificates to them. Geo. B. Hill & Company were his brokers, and he had many transactions with them in relation to his shares of stock. But it is not a matter of any serious consequence, because as to all of the indorsements on these envelopes it is a fact common to tbe whole of them that tbe testator did not sign any of them, and they are therefore fatally defective as testamentary writings.
There is however a very ready explanation as to all the envelopes and their contents. It was fully proved, and not contradicted, that Dr. Jacoby had a firmly fixed purpose to deprive his wife of any share of his property. He expressed this purpose in his will, and disclosed to Mr. Stevenson his desire to make a gift of his property during bis life, but apparently not to take effect till after bis death. Mr. Stevenson advised bun that it was very dangerous to make a gift unless he made a complete delivery, and explained to him the law upon that subject, and went so far as to read to him some decisions in relation to the matter. After saying that lie had read from 199 Pa. and 201 Pa. he was asked: “ Q. Did you read some other Supreme Court opinions to him ? A. Yes, sir; his intention was to make a gift.” He then stated that he had had a conversation with Jacoby some time before about the box and its contents; that Jacoby had told him “ how he had arranged matters inside the box, and that there were envelopes inside the box,” and that he, Stevenson, should deliver them at bis deatli. Whether this conversation occurred before or after tlie will was executed, tlie witness did not state, and did not remember. He said it was some weeks before Jacoby went on his journey, which was between March 4
Thus the will, after giving a few special legacies, directs the sale of all his property, real and personal, and the conversion of his entire estate into money, and gives the whole of the proceeds to his executors to be securely invested “ in first class mortgages.” He then gives his libraiy to the Young Men’s Christian Association of ■ Pittsburg, and the sum of $1,000 to his namesake, George T. J. Folk. He then directs his executors to pay over all the rest of the estate to the Safe Deposit and Trust Company of Pittsburg, in trust, to invest it in first class mortgages and pay out the income, one half to the children of Mary Downs, naming the children, and as each child reaches the age of twenty-one years his or her proportion of the principal is to be paid over absolutely to the legatee. The next clause of the will gives one eighth of the whole residuary estate to the trustee to be held for Ethel Jacoby, a niece, on the same terms as to interest and principal as in the case of the preceding bequest to the children of Mary Downs. The remainder of the estate is to be invested in mortgages, and to be known as “ G. T. Jacoby Protestant Orphan Relief Fund,” and the income
By the codicil executed on February 3d, following, about twelve days later, the legacy of one half the income of the residuary estate to the children of Mary Downs is reduced to one fourth, the testator saying he believed that one fourth would be sufficient.
It will thus be seen that the real testamentary purpose of this decedent, carefully expressed in a written will, was to give the great bulk of his estate to charitable uses, and onhr one fourth to the children of Mary Downs, and one eighth to his niece Ethel Jacoby. If the tin box and the envelopes were to be treated as his will, or as a part of it, a large part of the estate given by the written will to the charities would be altogether1 diverted, and would go to Mary Downs directly. These two purposes cannot be executed together. The one almost entirely frustrates and destroys the other. Under the written will Mary Downs gets nothing of the principal, and only part of the income to be used for the education of the children. If she takes the envelopes and their contents, she takes a large part of the estate and thereby greatly impairs the charities. It is not possible to believe that Dr. Jacoby intended to do any such thing, and if he did he would have done it in plain writing, duly executed, as he did in the case of the codicil. But, whether he intended to do so or not, he has not expressed any such purpose in a way that accords with the requirements of the law. Our statute of wills of April 8, 1838, contains the following-most salutary and wise provision as to the manner in which written wills once made must be altered, viz : “ Sec. 14. No will in writing concerning any personal estate shall be repealed, nor shall any bequest or direction therein be altered, otherwise than as is hereinbefore provided in the case oí real estate, except by a nuncupative will, made under the circumstances aforesaid,
As there is not the slightest pretense that any of the requirements of these two sections of our wills’ act were followed in this case, it results inevitably that the written will of the decedent dated January 22, 1894, and the codicil, also in writing and duly executed, dated February 3,1894, are his only lawful will and codicil, and must be so declared and adjudged. The manifest consequences which would necessarily flow from disregarding the plain and positive provisions of our statute of wills are so dangerous, so appalling in their character, that they cannot possibly receive the sanction of the judicial mind. The very moment that we tolerate the establishment of testamentary acts by dubious acts, by loose declarations, by mere verbal utterances proved by the testimony of witnesses whose memories, whose habits of attention, whose defective hearing, whose interested motives, whose imperfect and heedless conception of the meaning of words, may utterly fail to correctly express the testamentary intent of the testator, we enter upon a boundless sea of uncertainties and a vast mass of litigations, endangering titles and impairing the security of property rights to a most alarming extent.
Such a policy is but the substitution of the verdicts of juries who are controlled by mere passing whims or caprices, by prejudices, by passions or by mere sjunpathies, for the deliberate and carefully guarded written expressions of testamentary intent which our positive statute law now requires, and which all the experience of all civilized peoples proves to be the only safeguard for the testamentary succession of estates. We have gone far enough, in tolerating departures from strict statutory requirements, and it is to be hoped that we will take no further
Turning now to the authorities cited, it will be found upon examination that they are entirely insufficient to support the contention of the appellee. The decision chiefly relied upon to sustain the ruling of the learned court below is Fosselman v. Elder, 98 Pa. 159. In that case the testator had executed a formal will in which she gave several legacies to her niece, Isabella Fosselman, who lived with her. She afterwards died suddenly in January, 1880. Among her papers was found a sealed envelope indorsed in her handwriting thus, “ Dear Bella this is for you to' open.” There were contained within the envelope a promissory note for $2,000, made by the trustees of a church, to the order of the testatrix, payable one year after date, and also a paper of which the following is a copy;
*408 • “Lewiston, Oct. 2, 1879.
“ My wish is for you to draw this $2,000 for your own use should I die sudden.
“ Elizabeth Fosselman.”
The whole of this paper, including the signature, was in the handwriting of the testatrix. It was held both by the court below and by this Court that the paper was undoubtedly testamentary in its character, intended to take effect after the death of the testatrix; that it was signed by her at the end thereof and that it clearly designated the accompanying note as the subject of the bequest. The only question was whether the testatrix had sufficiently indicated the person who was the object of her bounty in the paper which was claimed to operate as a codicil to her will. The court below held that she had not, but this Court held that she had, and sustained the papers, consisting of the note, the written and signed paper, found within the envelope, and the envelope, with the words written upon the outside as a valid codicil.
It will be observed that there was no question as to the fact of there being an actual testamentary paper, dated, written and signed by the executrix. The writing on the envelope was simply resorted to in order to ascertain who was the legatee. As it indicated without any doubt who the legatee was, and was written by the testatrix on the very envelope which contained the note and thé testamentary writing, we held it could properly be resorted to for that purpose. But the importance of this connection was clearly expressed in the opinion by the present chief justice, who said, “It is true the testamentary paper does not designate the plaintiff by name, and if we had no written evidence to show who was meant by the pronoun “ you ” the bequest of the notp would be void for uncertainty, but it is a settled fact that the note is addressed to the plaintiff, and why not that indorsement in the handwriting of the testatrix be taken as part of the testamentary disposition.” It thus appears that all the controlling facts upon which the Fosselman case was decided are entirely absent from this one. In that case there was an absolute testamentary paper actually written and signed by the testatrix. In this case there is nothing of the kind. There the writing on the envelope distinctly desig
On the other hand there are a number of decisions which are in clear antagonism with the claim of the plaintiff, and much more analogous in their facts. Thus, in Plumstead’s Appeal, 4 S. & R. 544, the decedent loft among her papers certain envelopes containing securities, such as bonds and certificates of
“ January 12, 1871.
“ Ann Freeburn, daughter of Clinton Freeburn, #1,000 to be paid unto Clinton Freeburn her father for education of his daughter.”
Another of the writings was in the following words, “ Fanny Smith, formerly Fanny Meek #500 to be paid into the hands of her brother Clinton Freeburn for the use of daughter and in case she Fanny Smith formerly Fanny Meek may come to need to see that she is made comfortable, the interest being all yearly, the daughter may want.”
There were four more writings of a similar character but in favor of. other persons, and at the end was affixed the decedent’s name. There was some little conflict of testimony as to whether the signature of the decedent was genuine, though it was admitted that the body of the writing was his. There was also a quantity of parol testimony, as is usual in such cases, to prove that the decedent had verbally declared his intent to make the gifts indicated by the writings; that he had made a will; that he had his things all fixed, and other expressions of a similar
There is a still stronger ruling in the ease of Zimmerman v. Streeper, 75 Pa. 147. Streeper held a bond against Zimmerman; he indorsed on it, “I request my executors to give this bond to Anna for her great kindness she has shown to me and her grandmother.” This was signed and sealed. After it was written, “This is not to interfere with what I will to her this she is to have beside that.” Anna was the granddaughter of the obligee and tbe wife of tlie obligor. The bond was not delivered to Anna, but remained in the obligee’s possession with Ms other securities till his death. We held that the bond did not pass to Anna. We said: “We can discover in this case nothing more than an intent on tbe part of George Streeper to authorize his executors to deliver the bond in question to tlie wife of tbe debtor in the bond, after his death. There was no delivery; and no intention to deliver by George Streeper himself in his lifetime. . . . Tlie writing is not a trust nor an assignment, but simply an intended or prospective gift, to be carried into effect by bis executors.” Tliis ruling covers every aspect of the writings on the envelopes which specially indicate
Without prolonging the discussion, it is only necessary to say in conclusion that we are most clearly of opinion that only the original will of the decedent dated January 22, 1894, and the codicil dated February-8, 1894, can be admitted to probate as the last will and testament of the testator. We hold that neither the tin boxes, nor either of them, nor any of the contents of either of them, can be treated as testamentary writings of any kind whatever.
The decree of the court below is reversed at the cost of the appellee and the record is remitted for further proceedings.