A writing propounded as the last will and testament of William Griffith, deceased, was admitted to probate, and, upon appeal therefrom to the circuit court, an issue of devisa/oit ml non was submitted to the jury. The evidence offered by the contestants was excluded, and a verdict directed for proponents, which being returned, judgment accordingly followed, and, upon proper exceptions, this writ of error prosecuted.
This writing is in testamentary form, and was duly proved to be wholly in the handwriting of the testator and signed by him. While it is crude in expression, and not a standard of orthographical and grammatical construction, it is quite intelligible. The writing is plain and easily read. It appears to have been originally written with a purple indelible pencil, and to contain some erasures and interlineations by a black graphite pencil. Upon its face, and by all its terms, it is a will. It is in the formal language of a will, and can be read completely, with the changes made therein. We have been favored with the original document, and find it to be of no unusual type, but such as appears daily in the affairs of old-fashioned, sensible, but illiterate men. It is written on two sheets of note, or small sized letter paper. It contains four pages, each plainly numbered. The document is regularly dated and signed. On a seperate and unnumberd sheet, of the same size and quality of paper, in black graphite pencil writing, evidently by the same hand as that of the other sheets, there is a separate writing, signed by the
It is well to note that this proceeding can relate only to probate, and in no wise to the construction of the writing. Viewing the whole record, we observe that the case turns entirely upon the sufficiency of the evidence introduced by contestants to invalidate this writing as a will. This is true, because (1) the paper itself, upon its face, is clearls’- a legal testamentary disposition of property; (2) the evidence of proponents is sufficient to establish such writing as a hologra-r phic will of the decedent, under our statute. Since these propositions are convincingly true, the question presented is: Was the evidence on behalf of contestants of sufficient weight to overthrow the case so made? If it was not of such weight, there was no error in excluding it from the jury and directing a verdict for proponents. In Kuykendall v. Fisher,
It is argued that the erasures and interlineations invalidate the writing as a will, or, in other words, work a revocation of the same. Further contentions of the contestants are that the writing is only deliberative; that the same appears from the writing itself and the parol evidence introduced; and, therefore, that lack of testamentary intent is shown. These contentions appeared to be based upon the following: That the writing is in pencil, with changes made by a different pencil; that said writing on the unnumbered sheet evidenced a probability that testator might change his will; that the writing was not found in a box containing testator’s other
Alterations in this writing' have not the effect insisted upon by contestants. No presumption arises from them to be overcome by proponents. The will is presumed to have been in the same condition when executed as it was when found after testator's death. Rood on Wills, section 248. In this State one maj^ make a valid will without the same being attested by witnesses. He may make a holographic will, as this man did. The only requisites of such will are that it shall “be wholly written by the testator,” and signed by him “in such manner as to make it manifest that the name is intended as a signature. ” No dating is required. It need not be attested by witnesses, says the statute. The writing before us is unquestionably established'as such, looking only to its face and the evidence of proponents. Do the erasures and changes effect it, as they would a will not holographic unless the same was properly re-attested after the changes were made? Our statute settles this, wherein it provides that a writing declaring an intention to revoke, and executed in the manner in which a will is required to be executed, is the legal method of revocation. So we say that erasures in a holographic will, made by the hand of testator himself, is legal revocation of such portions as are so erased, since it is in the manner required for a will of that kind to be executed; and new portions written into such will, by the same hand, to take the place of erasures, or new portions otherwise written therein, by the same hand, being thereby executed in the manner which justifies the validity of a holographic will originally, so long as the signature of the testator remains in such manner as to make it manifest that it is intended as a signature, do not in any sense invalidate-the will or effect its finality, since it is then a complete new holographic will, and needs no re-execution or republication before witnesses, because it did not originally demand execution and publication before then. To say that the whole must be rewritten and again signed by testator, is simply to say that which is neither reasonable nor practicable. There was alteration in the mode provided by law, since it is
The proposition that writing in pencil is presumptive of deliberation, and no intent of finality, is so foreclosed by authority that but brief reference to it is merited here. “Statutes requiring wills to be made in writing are fully satisfied by printing from plates or type, by typewriting, or by writing made with a lead pencil.” Rood on Wills, section 246. And in Estate of Tomlinson, 133 Pa. St. 245, (
No suspended intention appears in this writing; it is complete, and there is no breaking off in its dispositions. The writing on the uiinumbered sheet, saying that he may change his will, shows no suspended intenion of testator, for it is therein distinctly stated that if changes are not made the will shall stand as written. It appears that some of the changes therein contemplated were made, legally, as we have held above. But testator, by his language in the memorandum on the unnumbered sheet, made it clear that his will was to stand as written, except as to such changes as he might make therein; and that, changes being made, it was to stand as changed. In Barnewell v. Murrell,
The finding of the will in the drawer instead of in the testa
Where is the absence of testamentary intent shown, as urged for contestants? Not from the writing itself, for such intent there appears. And, says Rood on Wills, section 62: “Usually no proof of testamentary intent is required, for it sufficiently appears on the face of the paper. But if there be any doubt on the matter, the circumstances under which the will was executed may be shown -in detail.” But where is the doubt shown? Shall we say that it is shown by the slight parol evidence that the testator said he had blocked out a will, and, later, that his business was unattended, as hereinbefore recited? Can this prevail against the plain testamentary form and intent shown by the writing in question? The law does not overthrow á testamentary writing on the weight of mere parol declarations by testator. If it did, why require testamentary dispositions to be in writing? Why not establish them by parol? Said Judge Baldwin, in Malone's Admr. v. Hobbs,
The inadmissibility of such oral declarations of a testator as are relied upon to invalidate the will we find-to. be fully suttained by authorities cited and principles discussed in Couch v. Eastham,
It follows from what we have said, that refusal of the instructions requested by contestants and exclusion of their evidence were proper. The proposed instructions were unwarranted by a correct legal view of the case, as expressed by us herein. The evidence adduced by proponents was sufficient to warrant a finding in their favor, and no evidence appreciably tending to overthrow the case made by them having been adduced by contestants, it was the duty of the court, as-requested by proponents, to direct a verdict in their favor. Their is no error, and the judgment is affirmed.
Affirmed.