231 N.W. 728 | N.D. | 1930
Lead Opinion
The petitioners presented to the county court of Stark county a certain instrument, alleging it to be the holographic will of one Mary J. McGillivray Street. The county court admitted the instrument to probate as such will, and from the order and decree of the county court the respondents appealed to the district court. This court made findings of fact and conclusions of law affirming the decree of the county court, denied a motion for judgment notwithstanding the findings or for a new trial, and entered judgment in favor of the petitioners. Frim this order and judgment of the district court the respondents appeal.
The instrument involved in this case was the subject of a prior suit. In McGillivray v. First Nat. Bank,
"All of the expressions and directions bearing upon the disposition of the property in the instant case are appropriate to a testamentary disposition, rather than to a trust, and when all are considered together it seems to us that the conclusion is inescapable, that the deceased really intended the disposition as a testamentary one and doubtless believed that she had done all that was necessary to give effect to her testamentary intention. Whether or not she had made a valid will is a matter that we cannot properly decide in this case, and we therefore express no opinion upon it."
The interested parties then commenced this action to have the instrument declared to be a will.
The specifications of error all center around two propositions:
First, that the instrument is not executed in accordance with the requirements of the statute so as to entitle it to be termed a will; and
Second, the testimony fails to show the alleged testatrix intended such instrument should operate as a will.
The following is a correct copy of the instrument in dispute: *622
"Money in Bank to be disposed of
H.E. Montague ..................................... 10,000 Maria Wheat ....................................... 10,000 Willetta McGlashan ................................. 3,000 Marian McGlashan ................................... 3,000 William Wheat ...................................... 2,000 Charles Wheat ...................................... 2,000 Fred Wheat ......................................... 2,000 Watson Wheat ....................................... 2,000 Florence Griffith .................................. 2,000 Mary Jane Griffith ................................. 1,500 Richard Griffith June .............................. 1,000 Norman Montague .................................... 3,000 Richard Montague ................................... 2,000 Hamilton Montague .................................. 2,000 Mary Currier ....................................... 1,000 Donald Montague .................................... 2,000 and Donald the Ranch.
"Mary J. McGillivray Street "Oct. 1923."
On the death of Mary J. McGillivray Street this instrument was found in her safety deposit box in the possession of the First National Bank of Dickinson, North Dakota, enclosed in a sealed envelope addressed as follows:
It is the claim of the petitioners however that this instrument in *623 dispute, termed a holographic will, is a later instrument intended for a will, executed as such and therefore must be admitted to probate as her will. It is admitted the whole of the instrument is in the handwriting of Mrs. Street, but the appellants say the instrument is not executed in compliance with the requirements of our statute, was not intended for a will, and therefore, cannot be considered as a will.
It is to be remembered we are not construing the document for the purpose of determining the intent of the alleged testator as expressed by more or less ambiguous statements in a will. It is not a question of the construction of a will. It is a question whether such instrument is a will, or a mere memorandum, or a document which Mary McGillivray Street may have thought to be a will. Much reliance is placed upon statements which it is said Mrs. Street made before and after the drafting of this memorandum. Testimony was offered by the niece, Mrs. McGlashan, to the effect that Mrs. Street told her "how to make a holographic will, that she herself had everything fixed," and there was testimony by H.E. Montague to the effect that Mrs. McGillivray told him he would find in the safety deposit box the disposition of her property or money. This was offered to show that in 1923 she stated that she had made a will. Prior to her marriage to Mr. Street in 1922 she had made a will, but this was revoked by her marriage. The marriage of a woman revokes a previous will made by her. See § 5658 Comp. Laws. Consequently there was this attempt to show that she must have made a will after the marriage — the theory being that this memorandum was her will. Just why it is assumed she knew that her marriage to Mr. Street revoked the previous will is not shown.
The general rule regarding the admission of declarations made by the alleged testator covers two classes of cases — those which are part of the res gestæ, such as the declaration to a witness that a certain instrument is his will and that he desires the witness to sign as a witness; and declarations made before or after the execution of the instrument, though not connected with its execution, when it is necessary to show the condition of the testator's mind at the time of the execution. Most of the cases arise upon an attempt to show that the testator said he had not executed the instrument and the rule is applied because such declarations, purely hearsay in their nature and which are not *624 against the interest of the testator, cannot be used to vary or change the instrument presented. But the principle is the same in the case where it is attempted to bolster a document by such declarations as is done in the case at bar. To permit the use of these declarations to establish the instrument as a will is in fact saying that without these declarations the document is not a will. To thus permit the reformation of a document would be to do violence to the statute of wills. As shown by 5 Wigmore, Ev. 2d ed. 408, the application of this rule to wills excludes "the fact that the draftsman made a mistake, i.e., it prevents the testator's oral or written instructions, or other expressions of intent to overthrow or replace the words of the will. In short, it excludes everything that would be excluded by the rule of Integration" discussed by the author and dealing with the varying of the terms of a writing. It is as much variance of the terms of a will to add something to it as it is to subtract something from it, or to change the meaning when the meaning of the written portion is simple and plain.
In Throckmorton v. Holt,
"That declarations, either oral or written, made by a testator, either before or after the date of the alleged will, unless made near enough to the time of its execution to become a part of the res gestæ, are not admissible as evidence in favor of or against the validity of the will. The exception to the rule as admitted by these cases is that where the issue involves the testamentary capacity of the testator, and also when questions of undue influence over a weakened mind are the subject of inquiry, declarations of the testator made before or after, and yet so near to the time of, the execution of the will as to permit of the inference that the same state of mind existed when the will was made, are admissible for the purpose of supporting or disproving the mental capacity of the testator to make a will at the time of the execution of the instrument propounded as such. These declarations are to be admitted, not in any manner as proof of the truth of the statements declared but only for the purpose of showing thereby what in fact was the mental condition, or, in other words, the mental capacity of the testator at the time when the instrument in question was executed."
In Kennedy v. Upshaw,
"It was proper not to admit declarations of testatrix that the will in question was not her will." Woodroof v. Hundley,
It is permissible to furnish declarations to prove testamentary capacity, not because they are offered to prove the validity of a will, but because they are presented to show the capacity of the party to make a will, when that feature is involved and therefore statements made within a reasonable time before or after the date are admissible to show the mental state. In Boylan v. Meeker,
When the question of genuineness of a signature was involved, or the contents of a lost will, declarations of the decedent that she had signed the will are permitted. See Johnson's Estate,
There are cases to the contrary, which might permit the proof of declarations for any purpose such as the case of Re Wellborn,
If declarations cannot be shown in order to infer no will had been made, because they are hearsay, and violate the parol evidence rule, thus making it rest in parol, then they cannot be shown in order to infer that a will was made; and as said in Rusling v. Rusling,
The "declarations of a testator that he had written a will . . . are not admissible against heirs at law . . . such declarations not being in any sense against testator's interest, within the exception to the rule of hearsay evidence." Mercer v. Mackin, 14 Bush, 434, 441.
Now in the case at bar it is sought to prove the declarations of the decedent were that she had made a will, that she had written it herself and where it could be found. This testimony is offered in connection with the finding of a memorandum in order to prove that this memorandum is a will. At the best it could only prove the opinion of the decedent in that she thought it was a will. It is true the case admits the document is in her hand writing, and bears her signature; nevertheless the rule against admission of such declarations is just as binding, otherwise it would permit the proof of a will itself by parol testimony, by hearsay evidence, instead of presenting a document executed in accordance with the requirements of statute, and containing words of testamentary character.
In the case of Mercer v. Mackin, 14 Bush, 434, 441, supra, the court, after discussing the presumption of revocation arising from the fact that an alleged will could not be produced, says: "But waiving this question, the evidence of the declarations to Mercer was inadmissible upon other and more substantial grounds. He declared he had made a will — had written it himself. This could in no event be sufficient. In order that it might be a valid will, he must not only have written it, but must have subscribed his name to it at its conclusion. . . . There is no evidence that he said he had subscribed it with his name, or that he knew such subscription was necessary to its validity.
"What he said was therefore but an expression of his opinion as to what was necessary to constitute a valid will, in which he may have been wholly mistaken.
"But had he declared that he wrote it and signed it with his own hand, evidence of such declarations would not be sufficient to authorize the probating of the will."
All this testimony being incompetent we have nothing to show whether *628 this document is a will or a mere memorandum except, the instrument itself which is admitted to be in the handwriting of the decedent.
Appellant's first contention of lack of statutory requirements is based on the contention that the instrument presented as a will is not dated. The statute involved (Comp. Laws 1913, § 5648) says:
"A 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 state and need not be witnessed."
Under the civil law an olographic, or holographic will was given a somewhat superior position when it came to the manner of proof. Being wholly autographic it was presumed to be what it purported to be. It proved itself. Thus we find that generally on the continent of Europe, and Scotland, in Quebec and in Louisiana and other countries and states where the civil law prevails there is not always the same strictness of qualification in interpretation required as where the common law jurisprudence is in the ascendancy. The testator, having written it himself he was presumed to be competent and to have acted voluntarily and without undue influence. For this very reason however, it was necessary that the will should be "entirely written, dated and signed by the hand of the testator himself."
The definition incorporated in our statute is found verbatim in the codes of other States. It came to us from California and there was taken from Louisiana. Martin's Estate,
Despite some more or less popular conception the "privilege of making testamentary disposition of property is not an inherent or even a constitutional right," it is wholly statutory and compliance with statutory requirements "is absolutely necessary to the validity of any instrument offered as a testament." Moody v. Hagen,
California announces the same doctrine in Martin's Estate, supra (p. 533 of 58 Cal.) where it is said: "We are not at liberty to hold that the Legislature intended any one of these requirements to be of greater or less importance than the other. If we may omit one why not either of the others?" The state of Pennsylvania announces the same doctrine to the effect that a paper supposedly testamentary in character, and intended by the testator to be a will, and which if proved there would be no question but what it was a will, must meet the requirements of the statute. "Testamentary paper which does not meet the requirements — is not a will." Wall v. Wall,
This case is one of first impression in this state. It involves the adoption of a rule for a literal or for a liberal construction of the *630 statutory requirements for a holographic will — the appellants contending for the former and the petitioners for the latter rule.
The omission which appellants say constitutes fatal defect is the absence of the day from the presumed date. The instrument says "Oct. 1923." It does not say dated Oct. 1923, nor does it give the day of the month. In the case of Stead v. Curtis, 112 C.C.A. 463, 191 Fed. 529, 537, it is said it is a sufficient date for a holographic will if the day, month and year are given though not the place. The place where executed is not properly a part of the date; but the courts are practically unanimous in holding that the term "date" means the year, the month and the day of the month written by the testator in such a way that it can be known from the alleged date just when the instrument was written. In the case of Re Thomas,
Thus a date which was given as 10, 1912 was held not to be a compliance with the statute. In that case it was not known whether 10 referred to the number of the month or to the day of the month. See Re Carpenter,
This is the holding of a state where the civil law prevails and one would expect, ordinarily, that a holographic will would have in Louisiana a somewhat superior position to what it would enjoy in a State where the rules of the common law are involved even though we take our probate proceedings largely from the civil law.
In the case of Robertson's Succession, 49 La. Ann. 868, 62 Am. St. Rep. 672, 21 So. 587, we find a case where the testator in a holographic will wrote the month and day in his own handwriting just before the figures representing the year which latter figures were printed on the paper. It was held this was not a compliance with the statutes requiring it to be wholly written by the testator, as the year was not written by him. In that case therefore the year was omitted from his writing, for writing by another is insufficient.
Attempt is made to explain decisions of Louisiana dealing with the requirements of a holographic will by saying that the Louisiana statute — "in order to be valid it (a holographic will) must be entirely written, dated, and signed by the hand of the testator, etc." — has been changed in our state by omitting the clause "in order to be valid it must be" so that our statute reads: "A holographic will is one that is entirely written, dated and signed by the hand of the testator himself, etc." The force of this comment disappears however, when we consider the provisions of § 5654 of our Compiled Laws, applying to all kinds of wills. This section says:
"No will or revocation is valid unless executed either according to the provisions of this chapter, or according to the law of the place in which it was made, or in which the testator was at the time domiciled."
Thus by express statute this alleged holographic will is not valid unless executed in accordance with the provisions of the statutes of this state. There is no difference in meaning between saying "in order to be valid it must be etc." and "no will is valid unless executed, etc."
A holographic will is much more susceptible to forgery than a will prepared by a lawyer, and witnessed by disinterested persons. In many states it is a requirement that such will be found among the testator's personal papers. This gives an opportunity for surreptitious placing among the papers of a forged or partially forged instrument and it needs no stretch of imagination to understand that in many cases where *632
a man contemplated the drafting of a will he might make memorandum showing the names of those whom he intended to be the objects of his bounty and the probable share to be given each in order to facilitate a scrivener to draft the will, and where such memorandum is stolen the date and name may be forged, or if signed in the form of a letter and sent to the scrivener the date may be forged. And so the law requires every portion of every word, every letter and figure of the will to be in the handwriting of the testator. The converse of this is true; therefore nothing can be omitted which the law requires. Hence the rule of literal construction regarding the date and other statutory requirements. In the case of Re Billings,
It will be noted that in determining whether the statutory requirements are complied with we do not examine the contents of the instrument. *633
The instrument on its face may be a complete will and dispose of all of the property, nevertheless, as shown in Re Anthony,
But this construction is not confined to California. In Re Noyes,
The case of Davis v. Davis,
It is apparent therefore that by the overwhelming weight of authority the statutory requirements for the making of a will must be followed substantially as required. In the Oklahoma case relied upon by the respondents will be found numerous citations attesting further to this weight of authority.
This rule regarding date is applicable to other subjects. In State ex rel. Baxter v. Beckley,
One of the principal cases relied upon by the trial court and *635
respondents, if not the principal authority, is Re Hail,
This theory of the Oklahoma court is shown from the cases cited in support of its conclusions. For example the case of Fosselman v. Elder,
This view of the necessity for compliance with the requirements of the statute in order to establish an instrument as a will is in compliance with the overwhelming if not entire weight of authority. When the testator signs in accordance with the statutory requirements he has not only substantially but completely complied therewith.
Another case cited by the Oklahoma court to substantiate its theory of the liberal construction of the statutory requirements is the case of Re Cole,
In this opinion discussed the Oklahoma court gives a long list of cases cited as appearing "to sustain the substantial compliance doctrine" though not commenting on them. The remainder not discussed are Re Fay,
The issue in Re Levengston,
In Buffington v. Thomas,
In Re Beckett,
The issue in Toebbe v. Williams,
From an analysis of these cases cited as authority we can not find the principle of liberal construction upheld so as to justify departure from the plain statutory requirements for the execution of a will. *641
The nearest approach among cases cited, to a departure from the rule of strict construction is found in Gooch v. Gooch,
To sustain the doctrine of liberal compliance instead of literal compliance reliance is placed on the case of Graham v. Edwards. It seems that in Kentucky there is a statute which says: "That when a writing is required to be signed, it shall not be deemed signed unless the signature is subscribed at the end of the writing." In the case before the court a holographic will had been prepared, and in writing the will the testator took the whole of a sheet of paper so that when he came to sign his name there was no room to sign at the bottom of the sheet. He signed on the vertical marginal line adjacent to it. The court held that this was a compliance with the statute. It will be noted that the statute under consideration telling where a signature should be placed is not a statute dealing with wills but is a general statute, and the court was interpreting the general statute. The court says: "The primary purpose, of these statutory provisions, is of course, to prevent the interpolation of matter between the end or close of the writing and the signature thereto, by unauthorized persons, and that purpose may be more easily fulfilled in the case of holographic writings than of nonholographic writings." The court then goes on to show how there was a practical impossibility for the testator to sign anywhere else. Of course if he had taken another sheet of paper and signed thereon and attached the paper to the instrument it would have been much more susceptible to change by unauthorized persons.
When we come to consider the authorities cited by the Oklahoma court in support of liberal construction of the requirements regarding execution we feel as if the attempt in Re Hail,
Though the Oklahoma court considers statutes identical with ours, in an attempt to show that "November 1919" is a substantial compliance with the statute requiring date, it is apparent it establishes no rule of construction of these statutes, lays down no rule for future guidance. The court expressly says: "It is not intended, however, by this decision to announce the conclusion here reached as a rule by which to measure the sufficiency of the date or signature of any other holographic will than the one here involved." For this reason it cannot be considered as authority in establishing a rule of construction, and becomes practically worthless to us in determining what is the real meaning of the sections involved. It cannot be cited as a rule, even in Oklahoma, as the court expressly disclaims any authority for it.
The trial court cites Re Fay,
The trial court seemed to rely to a great extent upon this Oklahoma decision and in his memorandum opinion he cites the cases of Re Donges,
When we consider the provisions of § 5648 of our statute, its history, its interpretation, and the overwhelming weight of authority demanding a literal compliance therewith in order to prove the execution of a will it is clear that a holographic will cannot be said to be dated when a material portion of the date is omitted. The record is absolutely silent as to the time in October, 1923, it was written. It is silent as to the purpose of placing these words on the instrument, and the absence of some such expression as "dated" increases the uncertainty. It is true the evidence shows Mrs. Street did not die until 1924 and the record is also silent as to any subsequent act on her part indicating an intent to change the disposition of her property and so it may be argued that no one is injured. However if the absence of the month, though the year be given, be fatal, even when the testator is shown to have survived that year and where the practically unanimous rule is that the date and the month and the year must be given, it is not the province of the court to alter legislative fiat.
But even if executed according to law, the document falls far short of being a will. This document was signed by the decedent. We are to determine whether it is a will. It will be noted there is nothing in the instrument itself which contains language of testamentary disposition. A "paper must show a testamentary intent." 1 Schouler, Wills, 6th ed. 500. There must be language contained therein showing the alleged testator gave or bequeathed or devised property. These words need not be used, or if used need not be used in their strict legal meaning, but some words must be used to show a testamentary purpose. In such cases as Re Morgan,
As we have already shown the opinion in the prior suit (
In Miller v. Travers, 8 Bing. 244, 131 Eng. Reprint, 395, such an attempt is stated to be "calling in extrinsic evidence to introduce into the will an intention not apparent upon the face of the will. . . . It is making the will speak upon a subject on which it is altogether silent, and is the same in effect as the filling up of a blank which the testator might have left in his will. It amounts in short, by the admission of parol evidence to the making of a new devise for the testator, which he is supposed to have omitted." In Patch v. White,
In Doe ex dem. Hiscocks v. Hiscocks, 5 Mees. W. 363, 151 Eng. Reprint, 154, the court says: "It appears to us that, in all other cases, parol evidence of what was the testator's intention ought to be excluded, upon this plain ground that his will ought to be made in writing; and if his intention can not be made to appear by the writing, explained by circumstances, there is no will." The term "other cases" was used after the court had shown that it could be "explained by circumstances" when the names of persons mentioned in the instrument required explanation, or when it was necessary to explain the meaning of words in the will to "supply some deficiency, or remove some obscurity, or to give more effect to expressions that are unmeaning or ambiguous."
Good faith wills should be upheld, but in this case we must determine whether it is a will. This means a will as defined by the statute in accordance with statutory forms and regulations, including a testamentary disposition of the property. It must be recalled that this document does not pretend to dispose of all of the property of the decedent. It is admitted it is but a partial disposition. To uphold this as a will we must assume that testatrix executed a holographic will disposing *646 of only a part of her property, intending to leave the remainder of her property undisposed of to be distributed to her heirs at law in accordance with the statutory provisions.
The instrument not being executed in accordance with the statute it cannot be admitted to probate as a will. In addition thereto there is nothing in the instrument itself which shows it to be a will and the disposition of her property. For these reasons the judgment and order of the district court are reversed.
BIRDZELL and CHRISTIANSON, JJ., concur.
Dissenting Opinion
This is an appeal from a judgment of the district court of Stark county, affirming the judgment of the county court in admitting a document to probate as the holographic will of Mary McGillivray Street, which is as follows, to wit:
"Money in Bank to be Disposed of:
H.E. Montague ................. $10,000.00 Maria Wheat ................... 10,000.00 Willetta McGlashan ............ 3,000.00 Marion McGlashan .............. 3,000.00 William Wheat ................. 2,000.00 Charles Wheat ................. 2,000.00 Fred Wheat .................... 2,000.00 Watson Wheat .................. 2,000.00 Florence Griffith ............. 2,000.00 Mary Jane Griffith ............ 1,500.00 Richard Griffith Jr. .......... 1,000.00 Norman Montague ............... 3,000.00 Richard Montague .............. 2,000.00 Hamilton Montague ............. 2,000.00 Mary Currier .................. 1,000.00 Donald Montague ............... 2,000.00 and Donald the ranch.
"Mary J. McGillivray Street "Oct. 1923."
Envelope: (in which document was found) addressed: "For F.H. Johnson and Claude Montague." *647
This document is entirely in the handwriting of Mary McGillivray Street, and it is conceded that she was competent to make a will. She was an old woman seventy-five years of age at the time of her death, and the beneficiaries named in the purported will are her sister, her nephews, and her nieces. She died on July 22, 1924, and there was found in her safety deposit box in the First National Bank of Dickinson, North Dakota, the foregoing document together with certificates of deposit for $48,500 payable to the order of self or H.E. Montague. In 1915, Mary McGillivray Street, then Mary McGillivray, made a will and the beneficiaries of said will, which was rendered invalid by her subsequent marriage in 1922, are the beneficiaries in the purported holographic will.
While in Dickinson in the summer of 1923, H.E. Montague was told by Mrs. McGillivray Street, "That if anything happened to her, he would be notified, and to come up here and to open her safety deposit box and he would find there the disposition of the property or the money."
The purported holographic will was found in an envelope in Mrs. Street's safety deposit box, addressed to R.H. Johnson and Claude Montague. R.H. Johnson was the vice president of the First National Bank of Dickinson, and the bank official who made the certificates of deposit at Mrs. Street's request, payable to the order of self or H.E. Montague, and Claude Montague is the H.E. Montague to whom the certificates of deposit were made payable. In a conversation with her niece, Mrs. McGlashan, in 1923, Mrs. Street told Mrs. McGlashan how to make a holographic will, and that she herself had everything fixed.
It is the contention of the appellant that the document is not testamentary in form or in substance, and that the same is not entirely dated as required by the statute. Appellant relies upon the decisions of California and Louisiana and in brief and oral argument insists that we took our statute relating to holographic wills from California; that California took it from Louisiana; that Louisiana took it from the Code Napoleon and that we are bound by the decisions of California and Louisiana. The provision relating to holographic wills appears for the first time in our code as § 691, Revised Codes, 1877, and has been retained without change until the present date. There is nothing *648 in the law to show where it was taken from, and nothing to justify the statement that it was taken from California, except, that the language is the same. It is not the same, however, as the language in the Louisiana statute, and if its origin was in the Louisiana statute, or the Code Napoleon, it was very materially amended. The Louisiana Statute reads (Merrick's Revised Code of Louisiana, 2d ed. § 1588): "A holographic testament is that which is written by the testator himself. Inorder to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the state." The Louisiana Statute says: "In order to be valid it must be." In our statute, the language "In order to be valid it must be" is stricken out and the statute simply states, "A 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 and out of this territory and need not be witnessed." If it was taken from the Louisiana statute there was some reason for striking out this provision, "In order to be valid it must be," and adding, "and need not be witnessed." The Louisiana statute must have been considered too drastic, otherwise the entire language of the Louisiana code would have been adopted by the legislature. The rule invoked by the appellant that we are bound by the decisions of California and Louisiana does not apply in this state, for the reason, that under § 7321, Comp. Laws 1913, "The code establishes the law of this state respecting the subject to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice."
There was but one decision in California relating to holographic wills prior to the adoption of the 1877 Code in the territory of Dakota, viz., Clarke v. Ransom,
"Mayfield Grange, Tuesday, June 23, 1874.
"Dear Old Nance:
"I wish to give you my watch, two shawls, and also five thousand dollars.
"Your old friend, "E.A. Gordon." *649
The court said: "On its face there is nothing to indicate that it was intended to be testamentary. . . . The instrument on its face simply expresses a desire, or at most an intention on the part of Mrs. Gordon, to give to the person designated as `Dear Old Nance' the watch and shawls, together with $5,000. It clearly appears, however, from the testimony, . . . that Miss Ransom is the person designated as `Dear Old Nance.' It is well settled in this country and in England, first, that in determining whether the instrument propounded was intended to be testamentary, reference will be had to the surrounding circumstances, and the language will be construed in the light of these circumstances. Second, that if it shall appear under all the circumstances that the instrument was intended to be testamentary, the court will give effect to the intention, if it can be done consistently with the language of the instrument. . . ." Citing 1 Jarman, Wills, 363; 1 Redf. Wills, 174, 175; Outlaw v. Hurdle, 46 N.C. (1 Jones, L.) 151; Ehrenberg's Succession, 21 La. Ann. 280, 99 Am. Dec. 729; Jones v. Nicolay, 2 Rob. Eccl. Rep. 288, 163 Eng. Reprint, 1320; Re Todd, 2 Watts S. 145; Maxwell v. Maxwell, 3 Met. 100; Robnett v. Ashlock, 49 Mo. 172; 1 Williams, Exrs. 90; Wootton v. Redd, 12 Gratt. 205; McGrath v. Reynolds,
In this case oral testimony was admitted to show surrounding circumstances and it showed the testamentary character of the will and that the person designated as "Dear Old Nance" was a certain Miss Ransom. So too, in the case at bar, it appears in the testimony that prior to Mrs. Street's marriage to Mr. Street she had a will, made about 1915, and the beneficiaries in that will, which was rendered invalid by her subsequent marriage to Mr. Street, are the beneficiaries in the document offered for probate as a will in the instant case. The testimony shows that she went to Claude Montague before she came back to Dickinson, and told him that if anything happened to her, he was to go to the First National Bank in Dickinson, open her box, and he would there find authority for the disposal of her property. The evidence further shows, that the money provided for in the document was in certificates of deposit that were made payable to Mrs. Street or to H.E. Montague and found in the safety deposit box with the purported will, and it is undisputed that the beneficiary named as "Donald," who was to have the ranch, was the Donald Montague and that there was *650 but one ranch consisting of 160 acres in Stark County. The document was found in a sealed envelope addressed in Mrs. Street's handwriting "For R.H. Johnson and Claude Montague." If it was simply a memorandum for Mrs. Street's benefit, why did she place it in an envelope addressed to Johnson and Montague? Mrs. Street did not need a memorandum, she knew what she wanted to do with her property, and to whom she wanted to give it. She had absolute control over the safety deposit box while she lived, and the inference that she placed the envelope with the document enclosed in the safety deposit box addressed to R.H. Johnson who made, at her request, the certificates of deposit payable to self, or H.E. Montague, and to Claude Montague, the H.E. Montague to whom the certificates were made payable, intending the document as a disposition of the money in the bank and the ranch at her death is irresistible. The document begins "Money in bank to be disposed of." When is it to be disposed of? It is disposed of when Mrs. Street dies, and the envelope with the document enclosed is delivered to R.H. Johnson and Claude Montague. After the statement "Money in bank to be disposed of" there follows the names of the beneficiaries with the amount each is to have, set opposite the name. It winds up with "the ranch to Donald." Clearly meaning that the ranch was to be Donald's. There is no question but what the wording of the document taken in connection with Mrs. Street's extreme age, and all the surrounding circumstances shows that the document is testamentary, and was intended by the testator as a holographic will.
In the recent case of Thrift Trust Co. v. White, ___ Ind. App. ___,
In Re Thomas,
To the same effect in Stone v. Holden,
In Re Aird, Rap. Jud. Quebec 28 C.S. 235, wherein it is held, that a holographic will written in typewriting is valid.
In Re Jenkins,
In the case of Fosselman v. Elder,
In Re Thompson,
In Re Skerrett,
"Neither the copy of the deed nor the letter, taken by itself, constitute a will; the one is not testamentary in its character, the other has no date; but taking them together as the deceased left them, forming one document, it is complete. The first furnishes the date, and the latter the testamentary character."
In other words, the deed which was dated was not a will because it was not testamentary in character and form, and the letter was not a will because it was not dated, and the court generously added them together and the sum total was a will.
In the case of Re Soher,
In Re Soher,
"But as has been said in other connections, it is not true as a matter of physical fact that the two documents are one and the same. The law for some purposes — mainly of construction — regards one as a part of the other. But this fiction ought not to be extended to absurd or unjust consequences." Will held valid.
In Re Morgan,
In Re Henderson,
"The subscription to the second paragraph, `Your loving mother,' if a material consideration here, is a sufficient signature. Ex parte Walker, 15 Quebec Pr. Rep. 15, also entitled `Rapport's de Practique de Quebec,' 15: Kimmel's Estate,
The only state not in harmony with the decisions quoted is, the state of Louisiana, as shown by the following decisions. Re Poland,
In Fuzier-Herman, Code Civil Annote art. 970 No. 149, it is said: "No fact, however, probative in itself could supply the defect resulting from the absence of the signature to the testamentary act itself. Thus *654 a testament which is not signed, is null though it be enclosed in an envelope on which the date of the testament and the signature of the testator are superscribed and affixed."
In the case of Armant's Succession, 43 La. Ann. 310, 26 Am. St. Rep. 183, 9 So. 50, the court said: "the article 1588 (being the statute relating to holographic wills) was copied into our code from article 970 of the French Code which in turn had been taken from an ordinance of Louis XV, prescribing the forms of holographic testament. Prior and subsequent to the Code Napoleon the jurisprudence of France had been uniform to the effect that the signature must be at the end of the testament or at least that no disposition following the signature can have effect. This jurisprudence was extant and well established when in 1825, the articles of the French Code were copied into our own. We think it to be a fair presumption that the framers of our code, familiar with the interpretation of the same language, both prior to and subsequent to the Napoleon Code, must have intended and expected that our own article should receive the same interpretation, particularly to the word signature as well as to the definitions thereof in all standard dictionaries." The authorities cited and relied upon are all French authorities, and the opinion does not mention an American decision.
In Dyer's Succession,
The subject of holographic wills is reviewed at great length in the case of Zerega v. Percival, 46 La. Ann. 590, 15 So. 476. The authorities cited in the briefs of the case, and the authorities cited by the court have simply followed and relied on the rule that the state court is bound by the French decisions which had become the settled law of France before the adoption of the law in Louisiana. As late as July 22, 1928, in the case of Walsh's Succession,
Under the Louisiana decisions no part of the will can be written below the signature. In the case of Dyer's Succession,
We have shown that the decisions of Louisiana construing holographic wills are not in harmony with the courts generally of the United States, nor of Quebec, but some of our courts have followed the Louisiana decisions on the question of date. The latest case on this question is the case, Re Hail,
The California court in the case of Re Price,
In the opinion the court said: "But the necessity of the day of the month in the date of the holographic testament is rigidly enforced by the jurisprudence under the Napoleon Code." Citing French and Louisiana cases.
In 1911, the California court had before it a holographic will dated
In Re Fay,
But it was claimed that there was a mistake made in the date. The court stated: "The legislature has not used the words `truly dated' nor `correctly dated' but the word `dated,' which must be construed according to the approved usage of the language. . . . The word `date' or `dated' is often used as referring to the date or time written in an instrument; thus it is provided in our code that any date may be inserted in a negotiable instrument, whether past, present, or future. . . . The date is not a material thing, although made necessary by the statute. It is a means of identification, and aids in determining the authenticity of the will; but the main and essential thing is, that the will bewholly written and signed by the hand of the testator. . . ."
In Re Lakemeyer,
In a long note to this case, 104 Am. St. Rep., the Compiler in reviewing the case of Re Fay,
In Re Francis,
It is fundamental in the drawing of a holographic will that it be entirely the work of the testator. The reason, since it need not be witnessed, is clearly for the purpose of reflecting the will of the testator without the influence of others.
In Re Thorn,
In Re Bernard,
"The following 4 sheets of paper included, Long Beach, California, Oct. 12, 1918. `I, Josephine Bernard of the City and County of Denver, Colo. do hereby declare this to be my last will and testament.'"
The will then continued on four sheets of paper, and was unsigned. The will was held invalid, first for want of a signature, second, for the reason that the words "Long Beach, California," were printed, and not written in the handwriting of the testator. *659
In Re Oldham,
The last case before the California court decided December 15, 1928, is the case of Re De Caccia,
Oakland, California, Febr. 14th, 27.
I make my Will I feel that I haven't many more years to live on this earth."
The will then continues all in the handwriting of the testator, except, the printed words, Oakland, California. The court said: "The instrument now before us resembles in many respects that held to be a valid holographic will in Re Oldham. The date follows the printed words appearing upon the instrument. It is contended by respondents, that the deceased used scrupulous care to write the date `Febr. 14th 27' on the same line and as close as possible to the printed words, `Oakland, California,' and thus manifested a clear intention to connect the printed words in the instrument with the date of its execution. . . . In the Oldham will the date was so nearly in line with the words `Los Angeles, California,' that in deciding that case we referred to them as `being followed by the date written approximately on the same line.' We do not believe that this slight difference in the two instruments in this respect would justify a decision in one upholding it as a legal instrument and in the other a decision declaring it invalid." The court then proceeded to distinguish "Re Bernard" case, which was held invalid, from the case "Re Oldham" and "Re De Caccia." The other cases "Re Rand,"
The late decisions indicate that California has adopted the liberal, reasonable rule of construing holographic wills.
According to the great weight of authority it seems clear that a good faith will will not be set aside because of mere irregularities as to form, but should be upheld when it is possible within the law to do so, *660
as in Ex parte Walker, 15 Quebec, Pr. Rep. 15, where a holographic will was signed "Mother." And in Re Kimmel,
The date of the will in the instant case is necessary only for the purpose of showing that it was made subsequent to the marriage of testatrix to Mr. Street. It is conceded, that the will is all in the handwriting of the testatrix; that she was competent to make a will; that she made this will in October, 1923; that there is no other will as late as October, 1923; and since the will was executed in October, 1923, and the marriage of testatrix was in 1922, the date of the will proves conclusively that the will was executed after the marriage.
Section 7321, Comp. Laws 1913, is as follows: "The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice."
Under this section the substantive law as set forth in the statute must be liberally construed and the practice and proceedings for the enforcement of the law or for the protection of any right thereunder must be liberally construed.
Section 5648, Comp. Laws 1913, establishes the law of this state relating to holographic wills and therefore the law of holographic wills *661 as established by the code and the procedure for the probate thereof must be liberally construed.
Section 5648, Comp. Laws 1913, does not say as does the statute of Louisiana, "That in order to be valid a holographic will must be" so and so, it simply says, "A holographic will is one written, dated and signed by the testator himself." In the instant case the will was wholly written, dated, and signed by the testatrix. It is dated "Oct. 1923," and as there is no other will of a later date than 1915, and the testatrix was competent to make a will, the date in this case is sufficient.
Under § 5694, Comp. Laws 1913, "Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy."
Attention is called by appellant to the closing language of the opinion in the case of Re Hail,
"We are constrained to hold that Oklahoma is inclined to the liberal construction or substantial compliance rule, and applying these rules to the record in this case, and the will here involved, we hold that the date `November, 1919,' is a substantial compliance with the statute. It is not intended, however, by this decision to announce the conclusion here reached as a rule by which to measure the sufficiency of the date or signature of any other holographic will than the one here involved. The construction to be placed upon our statute governing this class of wills is left open for determination wherever its construction is more imperatively demanded by the facts of some particular case, and, this being the only objection made on this appeal to the validity of the purported will of John D. Hail, the judgment of the district court admitting said will to probate was right and its judgment should be in all things affirmed."
It is claimed that this language indicates that this decision is not authority in any other case. The reason for this statement in the decision is clear. There might be a case where a will offered for probate is dated in the same manner, and another will might be presented of a later date. This decision in such case, of course, would not be authority, or it might be that the decedent was perfectly sane on the first day of November, but insane at other times during the month so there might be a question of competency involved.
In the Oklahoma case there was no question of competency or of any *662 other will. In the instant case, there is no question of competency, no question of any other will, no question about the property, or that it belonged to Mrs. Street, and was hers to will to whom she pleased. It is all admitted, but because, forsooth she did not include the day of the month in the date, her will is nought, and the property she guarded and preserved so well, goes where it was not intended to go. The statute does not say that the date shall include the day of the month. It simply says, "A holographic will is one that is entirely written, dated and signed by the hand of the testator himself." In the instant case the will is entirely written, dated and signed by the hand of the testatrix. The absence of the day of the month from the date injures no one in this case and is entirely immaterial. The state through its law making power may regulate the making of wills, but it is not jealous of this power. It recognizes as fundamental the principle that laws are made for the people and the promotion of their general welfare. Its supreme obligation and greatest concern, is the enactment and enforcement of legislation that will enable us to live in safety, to acquire property honestly, to protect our property against the encroachments of wrong and to make it simple and easy to dispose of as we wish before we die. The judgment of the District Court and the County Court should be affirmed.
Dissenting Opinion
I am unable to agree with the majority opinion. Reasonably construing and applying the statute, § 5648, Comp. Laws 1913, the writing here involved meets its requirements and constitutes a holographic will. The majority opinion says that the writing is lacking a sufficient date. I cannot agree. October, 1923, is a date. Judge Burke in his dissent has cited a great number of cases touching this question and I will not burden the record by a further reference to authorities.
I think further that the writing expresses Mrs. Street's testamentary purpose. Considering the instrument in the light of those circumstances which are competent to be considered, it is clear that she intended by it to dispose of her property therein described, such disposition to take effect after her death. That the writing is inartistic and informal is beside the question since her testamentary intent thus appears. See Noble v. Fickes,
The judgment of the district court should be affirmed.
