Johnson v. Johnson
279 P.2d 928
Okla.
1954
Check Treatment

*1 same, that where modify modify is filed dur vacate or motion to required term, is not ing the movant ac cause of prove a valid allege Hill, 193 Okl. Long v. tion or defense. Montague 434; v. State 463, 145 P.2d Office, Land Commissioners ex rel. in the And 283. P.2d 184 Okl. powers that the stated last cited case we judgments their courts vacate

of said they ren were in which during term by any statute. restricted was not dered * ’ * * v. Robin Mannah see Also 360; Tip 551, 188 P.2d son, Okl. P.2d Turben, 162 Okl. pins v.

605. judgment, vacating the

“By the order reinstated in parties merely were occupied since the position they had first at issue.”

case was has been discretion

No abuse of warrant a rever would

shown herein which order.

sal of the court’s is affirmed. judgment Johnson, J. and Beulah C. JOHNSON

Victor Error, Plaintiffs JOHNSON, Error.

Joseph Defendant E. 35937.

No.

Supreme of Oklahoma. Court

Oct. 1954.

Rehearing 1955. Jan. Denied. Peti to File Second

Application Leave Rehearing Denied Feb. tion for

Ames, Daugherty, Bynum Black, & Okla- City, plaintiffs homa in error. Weiss, Suits & Suits, Fred E. Oklahoma City, for defendant error.

PER CURIAM. appeal

This is an judgment from a the District County Court of Oklahoma af- County firming Court Oklahoma probate denying to an purport- instrument ing be the last will and testament of Johnson, Dexter G. who was sometimes known as D. G. Johnson. question

The instrument in was on a sin- gle paper sheet of type- contained three paragraphs,, written started out with the “I, words, D. G. also known as Johnson Johnson, Dexter G: of Oklahoma City, County, Oklahoma State of do Oklahoma make, hereby publish and declare this to ” * * * my last Will be and Testament bequests and made numerous and devises with recommending and concluded the em- ployment attorney probate of a certain portion the will. This was not dated nor did sign the testator his name at the conclusion thereof nor itwas attested type- two witnesses. At end of the portion, written at the bottom of the sheet paper, appears following, admitted to handwriting be in the of the deceased: my ten give “To brother I dol- James only. complete This lars will shall be altered, changed hereafter unless rewritten. appended a holographic which is April my this hand “Witness valid If codicil? Sunday, 2:30 P.M. Easter it cannot admitted former “D. G. Johnson *3 presence in signed was because it not “Dexter G. Johnson.” required subscribing of two witnesses as Court in the District de novo On trial by law. will, plain- purported this proponents of urges Defendant in error that the instru- over here, evidence introduced in tiffs error it one ment its face that is but in- shows on objections never were (which objections that cannot be divided into strument and it that Dex- court) showing by the ruled on one, part parts, typewritten to be two years many for G., or G. ter D. Johnson other, handwritten called a will and the attorney Oklahoma in practicing awas part, support to be called codicil. In prepared practice he during his City; that says typewritten he his contention that form, vari- wills, proper in many all portion because, is not standing alone a will 1946, October, clients; de- that in ous admittedly testamentary in though charac- Wiggins, his insur- told G. ceased Jack dated, witnessed; ter, signed, it not is nor counselor, he had a will but it that ance portion it that takes the handwritten to changing; needed date and out of was instrument; by complete the that definition March, 1947, told this in- deceased in

that to have a codicil there must first be a will. working was that he on surance counselor expected changes, question is in will, making There no this case his away Wig- typewritten and told Mr. that the instrument which was complete right it dated, disposition signed, pre he intended not nor attested was gins general in pared by in property; that the latter D. and that it is testa make of his G. Johnson Wickham, character, mentary in he part M. de- or that intended 1946 Lowell effectively the instru- will or agent, was shown same as his that it makes ceased’s rental question complete disposition at which time it of his A estate. ment here it; here, portions defective, typewritten may be as that is only the on so it not had testamentary but told him that entitled to if that time deceased that at will, wanted character it is a nonetheless. and he Wickham to his will was it, he and deceased started dis- but witness by “A is man’s will the instrument neglected to cussing business and do other expresses which he his intention as to time; that when Wickham left that at disposition property his his at desk; lying on deceased’s paper was Eaton, v. death.” —Loveren 80 N.H. Wickham asked de- months later that some 62, A. 113 witnessing the will and de- ceased about “If maker intended document to be changed by his will replied he had ceased death, at it is effective a ‘will.’ ”—Knoll sign Wickham to did not need codicil and Hart, 223, 308 Pa. 162 v. A. 228. witness; by an offer statement it as any question Nor is there that the hand- show the intention of was made to counsel wholly written words were in the handwrit- property leaving his ing of the testator. persons named as beneficiaries he question arises, next do these by the court and is not rejected requirements meet the words aof codicil? questions deciding raised helpful in here. By supplement to, definition a codicil ais summary of all the is a The above tesr qualification of, addition to or an an exist timony appears the record. None that will, ing alter, made the testator to en testimony presented County to the of the provisions restrict the large, will, or record; appears in the defendant Court it, explain republish it, to revoke below, the will and contestant of defend- testamentary it must be in character. here, testimony. no in error offered ant Estate, In re 26 Whittier’s Wash.2d 176 complete, codicil P.2d 281. A need not be this instrument one inte- called Is Estate, partly Cal.App.2d In typed partly re Carr’s 93 grated writing, 956; handwritten; In re Estate, or is it an 209 P.2d Atkinson’s unexecuted non-

93i Cal.App. 499, The intention codicil 294 110 P. 425. had the giving operation effect of controlling. Allgeier v. whole add a codicil as one Hurley will. See also v. Brown, 851; Ky. Blankinship, 1950, 251 Stewart Ky. 49, 199 S.W. 313 229 S.W.2d 116; Stewart, Mass. v. N.E. A.L.R.2d 817 in which holographic Estate, supra. re The handwrit will Whittier’s which was signed not was held validat testamentary admittedly in ed ten words are executed holographic codi cils; they an Evans, 1832, character. It is clear make Doe Cromp. & M. provisions there addition to the of the will 129 Eng.Reprint in which an un signed the same existing. This codicil is on tofore will was held validated thereof, paper *4 properly sheet and the terms a of executed codicil on the same it, by surrounding paper; circumstances as shown sheet of McCurdy Neall, see also v. 1886, testator in N.J.Eq. indicate that the 42 333, the evidence 7 A. 466 and Smith republication Runkle, it and 1916, tended an to 257, as addition v. N.J.Eq. 86 98 A. 1086, of his will. both of signatures which the to the wills were placed defective because not on then, If a it a'valid it be is presence the will in the of witnesses but it dated, written, by It and signed one? was held that valid codicils thereafter ex requirements the testator. It meets all the gave operation ecuted to the entire will and The fact holographic of a valid codicil. codicils; Rogers Agricola, 287, 176 Ark. was on that the codicil written the same 26, 3 S.W.2d in which an typewrit invalid piece paper typewritten will of as the will (due ten will only witness) to one was held In re not the codicil. Atkinson’s invalidate by subsequent a validated holographic cod supra. Estate, icil; Estate, In re Plumel’s 151 Cal. 90 republishes that a is admitted codicil It 192, an holographic P. invalid will because by previous as modified the codicil a will of printing thereon by was held validated valid, date Can a as of the of codicil. subsequent a holographic codicil written on republish codicil and validate the back of the will. inoperative a will which was theretofore Arkansas, The states of California, Illi- dated, signed, not ac- because attested nois, Iowa, Louisiana, Missouri, Nebraska, cording to law? Ohio, Hampshire, New Pennsylvania, Ten- nessee, Virginia and Wisconsin have each general principle The of law is will inoperative held that a which was and validly operates that a codicil executed as subject imperfect not to because of republication a of the will no matter what republished attestation was and validated may have existed in the defects execution by the execution of a valid codicil there- document, that of earlier the instru to the testator and each has announced one, incorporated ments are as and that a the rule oper- outlined above that codicil proper execution of the codicil extends al republication as ates of the will no Twenty-two so will. states and may matter what defects have existed in the England so For citation hold. of cases see original execution of the instrument. prop Annotations A.L.R.2d 823. a 21 That only exception is New York erly give which executed codicil will effect to a general modifies the rule signed holding never been that will which has has been properly executed codicil specifically validates a Kentucky, held in will Jersey, New originally invalid for want of England. Cunningham, testamentary and Beall v. See capacity, influence, undue Ky. 390, 3 B.Mon. in which it revocation but paper wholly does not validate a will appeared defectively that a written executed improper because of dated probate, testator 1925 was denied attestation. It will be noted, however, pro and there was offered thereafter Cardozo in Re Justice Fowles, 1918, will bate dated N.Y. 118 N.E. unsigned unattested, 1918D, 834, together Ann.Cas. stated that with the rule codicil dated 1832 on the same was malleable and uncertain of and he antici- sheet signed attested; paper pated which was that New York would abandon its lim- opinion holds that itations on rule. law-makers, intent our supra, was not the Cunningham, It Beall v. case In the substantially statutes, if enacting these the New in discussing Kentucky court with, miscarriage complied allow a to ever be val will could a revoked rule that

York disposition of the justice wrongful aby exe improperly but an by a codicil idated intent. contrary his property testator’s said : not one could cuted provides: 84 O.S. 1951§ princi- difference in no can see “We governs. testator “Intention of codicil so attaches If a ple in cases. —A according to will is be construed part a revoked to, forms itself *” * * intention of the testator. and ef- force will, give to revive as perceive such, we cannot it as 19, 100 fect to Elliott, P.2d Munger v. 187Okl. to and may attached why not be so it 876, 877, syllabus we held: paper which upon any other ingrafted the construc- “The cardinal rule for as his may treat choose to the intent is to ascertain tion of Wills operation will, give force as thereto, testator, give effect * * * reason that as his attempt effect if such intent does not *5 republication in the the would sustain of the All rules that which law forbids. pub- the sustain equally one case would pur- designed for this construction are implied testator, plainly lication presumptions are pose, and all rules and codicil, refer- the from the execution of the testator subordinate to the intent of paper as his will.” ring the where has been ascertained.” hold that the valid therefore We case, expressed intent instant In the incorporated prior holographic codicil in instrument the written republished reference and and val mind and prepared, while sound he of prior of the date of the will as idated beyond any memory, is clear and disposing to.the intention of thus effect giving doubt, undue question from fraud or of free testator. only objection any of kind. influence strictly the will statutes were not with directions to enter is that the Reversed raised complied the execution of the probate. Will. with opinion, person when dies I am the of WELCH, and JOHNSON, J.,C.V. in- which he a written instrument leaving BLACKBIRD, JJ., CORN, and ARNOLD Will, his it is free from to be last tended concur. harmony fraud undue influence purpose law-makers for en- with the of our HALLEY, J., and C. WILLIAMS the execution of regulating acting statutes DAVISON, JJ., dissent. Wills, with the of in accord laws and also states, twenty-two of England and' our CORN, (concurring specially). Justice justice to not ad- miscarriage of would opinion. per curiam In so I concur in thereby probate, allow the Will to mit purpose the' of our I have in mind doing disposed contrary of to be property regulating statutes in enacting law-makers intent. the testator’s They require certain making of a Will. would, permit in effect, To hold otherwise of a Will steps taken in the execution to be contrary disposition property of testator’s per purpose permitting a for the solely statutory purpose for which the against Will, property by dispose of his son to provisions were aimed. way he after his death the de effect take o someone, sired, prevent through and t HALLEY, Justice, (dissenting). Chief means, permitting from other fraud compelled dissent in this I am case purpose It be done. our this to misunderstanding be-no Act, order that there lawmakers, passing to make it majority this instrument which the about impossible for fraud or undue influence to says probate, opinion should be admitted Will, the execution of the practiced-in photostatic setting I copy am out property dis in the" disposition posed front and back -thereof: by the Will. *7 the District County Judge Both and The in formalities to be observed probate. Judge writing denied this simple the execution of and wills are is as follows: strument should be admitted cording to I name at the the instrument is his nesses, ence. his declare to the in the subscribing or es, . to. would never thereof person, will, rection, other nuncupative will, attested In the Under “4. “3. The testator “2. The “Every “1. them, authority. must be in aas witness at the end of testator’s presence be R.L. than There must It must be my conception first each of whom must by must to have been made as Section acknowledged by will, the testator his follows: place subscription agree subscribe acknowledging other attesting presence of the writing; request § must it subscribed 8348.” that the must, was not than á will; and, two attesting witness- himself, be his O.S. witnesses that must be made at the time of attesting to name there- nuncupative will and foregoing every executed ac- by at law probate. him or his sign or some the end his di- of same, pres- wit- will, his wills, in- held: In the form and manner in which it shall fails [*] 'No essential vention fered Legislature will is a creature [*] In Hill v. der consideration there was no fraud. with formalities ments showing pensed with, will, compliance ments any instrument offered has seen of property, tainty calculated to “Where “The L.R.A. published the exercised. [*] [*] right, re [*] [*] looking show statute right >» ." that in the Stover’s 1918B, fit to necessary Davis, probate, has nonholographic fraud that the testatrix prevent and testamentary determine * formality may quoted impose dispose instrument prescribed ** Will, where with such a failure is not power, particular and the evidence Okl. to the frauds and uncer- are is said: certain execution of a supra, aas statute. property excused for the mandatory, dispositions as Legislature validity will is of-' provisions testament. prescribe 167 P. granting declared this Court her will case require- require- be comply The pre- dis- un- by *8 presence in the many subscribing wit- It is well known that instruments nesses, and probate which fails to show that the offered for have been denied ad- will was signed, acknowledged by probate not mission to because the testatrix to signed by have been her statutory with executed in accordance re- by authority presence her quirements. the of In the case of In re Abrams’ witnesses, Will, 215, 101, subscribing propo- the 103, the Okl. 77 P.2d this 182 nents have not that established the will Court said: law, was according to and the regretted “It is to be that the inten- probate thereof should be denied.” of tion the testatrix is defeated her by C.J., Wills, See also to 68 statutory failure observe the require- § ments, but to hold otherwise would in Duke, The decision Reeves 192Okl. let effect be to down the bars to evils 519, 897, 137 P.2d 147 A.L.R. is suffi- against statutory provisions which the support theory cient to the that the testator ” * * *(cid:127) are aimed. considered his own writing both and the typewritten portion as his will where he re- Will, In In re Stover’s 104 Okl. 231 fers to it as “this will.” quoted P. the Court the following Law, Ruling page 108, from 28 para- Case instrument which majority opin- This the graph probate 60: ion will admit is not- a holo- handwriting nothing in the There is about the entirely it is not

graphic will because just It is required reads like a codicil. that looks or as is testator handwriting of the had to be part of the will which will fol- the 54, O.S.1951, is as which Section like certainly not look witnessed. It dees lows : prepared his cli- the wills the testator for is is. one that will “A nothing type- the There was about ents. written, signed dated and entirely part to indicate that that was all the written It is himself. hand the testator the of was write. going testator form, may be other subject to no Wills, State, 264,incomplete instru- C.J., In 68 this need § made in or out of quote that R.L.1910, ments are from discussed. We 8347.” not witnessed. § Section: pur proponents of the Counsel for the up ingenious may incomplete ported with so will have come “An instrument partly is instrument which will not de that this and unfinished that courts idea partly handwriting presumption typewriting and The clare it to be.a will. incomplete be admitted against is and should an and unfinished valid is will, holding the handwrit reason that some cases that an instru fantastic will, It is typewriting. is ing codicil to not a where the is a ment part complete typewritten not further act to position some my that is intended will, part is a as a the instru handwritten not To be effective will it. a only complete a part appear is far handwritten ment must to be so The codicil. typewritten part part the testator’s left no of as to have continuation ”* * * combined, will they a which unexpressed. constitute that intention prop cannot and therefore was not attested was is be noted there It further to probate. erly be admitted handwriting which referred nothing in part unattested typewritten this The spoke previous “this will” will. It It dated nor witnessed. signed, not will is previous There is noth- not of a will. n > period. casual A with not finished was handwriting indicate that ing about this is in itself a that it not inspection reveals He intended to be a codicil. the testator only handwriting it is Without will. handwrit- completing his with the will it a paper. majority calls scrap of ing. Eaton, Loveren v. strengh of will on. por- he intended the I think Hart, Knoll v. 113 A. N.H. will, not part of his the com- tion be a this 228. Now Loveren 162 A. Pa. interpreted A is to be pleted will. will Wills, 1, C.J., in 68 is cited § v. Eaton its corners” and what found in “four is cases wills. Most section defines that the testator nothing to indicate there is legal declaration say will” that “a one instru- anything but intended it to be which he to be wills intentions .man’s extrinsic evidence should ment. Parol or The writer of performed his death. after contrary when show the not be admitted to complete not when it was this will knew signed is one instrument. stopped. He wrote: typewriting *9 this be circumstances should Under no I my give ten dol- brother “To James never sub a codicil I can considered and complete only. will shall be This lars holographic proposition that a scribe to the altered, changed hereafter or unless as will an instrument validate a codicil will rewritten. content, as to typewritten, is unfinished that 6, April my hand this . undated, “Witness a unsigned and unattested. Not P.M. Sunday, 2:30 holographic Easter where a -been cited case has “D. G. as a will an instrument validates codicil Johnson G. “Dexter dated, or signed attested and was not which Johnson.” purported in the codicil made reference type- no nothing legal about the was There opin majority The will. placed preceding to the handwriting was the until writing 49, Blankinship, Ky. 313 Hurley v. cites ion paper. the sheet on.

937 cuted, 817, prior Since a a will. and the revives 963, A.L.R.2d 21 S.W.2d 229 entirely in the holographic must Hurley case the will be In the note thereunder. testator, a holo- the holographic handwriting of was a under consideration will codicil, attested, graphic which not testator is signed, but the which was not will republish prior stated that does not a will specifically writing in additional in signed entirely handwriting is not the a it. writing was codicil and the ”* * * 390, Ky. testator. 42 Cunningham, Beall v. 3 B.Mon. 469, Hurley

390, cited in the 39 Am.Dec. properly When a codicil is executed it republication a the had to do with case part together they becomes a will and validly the codicil was There revoked will. are to be as one construed instrument and paper to the as his referred and executed validly this is executed codicil reason Evans, case 1 English In of Doe v. will. will vitalize a been will which has not exe 307, 42, ref Cromp. Eng.Reprint 149 M.& properly, cuted but a holographic codicil note 21 in to which is found erence which is not witnessed cannot validate a The 829, signed. will was not A.L.R.2d typewritten instrument as a will which has signed and later was two weeks dated, signed not been See attested. to the un expressly referred attested and 57, Estate, 594, Sharp Leech’s 236 Pa. 84 A. paper. same will on the executed Wallace, supra, Wills, v. and 57 Am.Jur. otherwise, permit rule Section 627. To will Rogers Agricola, case of v. writing entirely which is not in the hand type was the will Ark. 3 S.W.2d writing of the testator be admitted to written, dated, by only but attested signed probate sans attestation. This should not codicil witness. Later a one law. reference signed dated and made was repeat typewritten again I will. Supreme The Court of New York will typewriting that the to be remembered is permit not executed codicil to question signed, not dated wit was republish a will which was defectively exe- nessed. By cuted. no means should this Court adopt a rule permit which would a holo- McCurdy Jersey cases of The two New graphic republish codicil defectively Neall, N.J.Eq. 7 A. v. executed will. Runkle, N.J.Eq. 98 A. v. Smith In the different case at bar. are from No State has as gone far as majority McCurdy codicil case the in this I has case. submit that this would proved to have all due with formalities poor adopt abe rule to because it would expressly so executed and confirmed been open way for too much forgery. Ex- report Smith the will. From v. perience taught has the Legislature that determine the codi- Runkle we cannot how safeguards up must thrown far so as do not it was cil was written but think hol- the execution of wills are concerned. Supreme ographic. Kentucky Court of Something attempted to be made of approve a will under like circum- refused fact that the testator lawyer was a but Wallace, Sharp Ky. stances prove many that would nothing as eminent and said: lawyers have failed properly prepare codicil, although “An unattested execute their own wills. The will of Sam- wholly handwriting in the of the testa- example. uel Tilden is a notable J. tor, operation bring cannot into as a complete This will was one will unattest- paper awill which is neither in the ed therefore not admissible to handwriting of the nor attest- give this the construction that ed, required as the statute.” *10 placed majority upon has it wholly Wills, Page on Why Section Vol. mockery make a unwarranted. provision the rule is stated as plain follows: our Property statutes? may only descend when the will is apparent, “The holographic will is an conformity with the statutes. though exception gen- not a real rule that a eral if exe- I dissent.