106 P. 355 | Mont. | 1909
Lead Opinion
delivered the opinion of the court.
Section 4766, Revised Codes, declares: “Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.” And that this is done is not infrequently the case. (Estate of Murphy, 104 Cal. 554,
It having been heretofore determined that neither the paper, which may be designated as the “Fenton will,” dated May 4, 1907, nor the one offered for probate as a holographic will, purporting to be dated February 23, 1903, is valid for any purpose (ante, pp. 178, 190, 105 Pac. 1013, 1017), the solution of the first question submitted for decision turns upon the answer to the inquiry: Does the Thermopolis letter contain such a reference to either or both of them as to require them, or either of them, to be regarded as a part of it? In the prosecution of this inquiry we are not aided by section 4736, Revised Codes, which declares: “The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil”—for the term “will” as used in it, clearly means a document which itself has testamentary character. At the same time the sufficiency of the reference is left open to inquiry to be determined by the facts of each particular case. The rule
The language employed in the statement of the rule in this, case, and in Smart v. Prujean, as well as the discussion touching the admissibility of evidence in Allen v. Maddock, clearly excludes the use of it for any other purpose than the identification of a writing mentioned in the testamentary paper as such and as then in existence. The rule as stated does not contemplate the introduction of proof to demonstrate that the language used was intended to be a reference to some other instrument. The reference must be unmistakably the testator’s. The description of the paper referred to, if complete and definite, dispenses with evidence to establish its identity. It is. only when the description is incomplete that extrinsic evidence may be resorted to; for in Allen v. Maddock, in this connec
The Thermopolis letter does not refer either directly or indirectly to any paper whatsoever. In the absence of extrinsic ■evidence showing that Noyes had left the two imperfectly executed wills in the hands of Fenton, there is nothing to indicate that any testamentary paper was in existence anywhere. That some of the provisions of both wills are recited was clearly for the purpose of conveying information to the defendant of the solicitude of the testator in her behalf, and not to ratify anything already done or to republish either or both of the wills which he had theretofore attempted to execute. The district court therefore correctly answered the first inquiry in the negative.
The answer made by the district court to the second inquiry was, we think, also correct; for, eliminating the conditional feature of the writing, it seems clear, in the light of the surrounding circumstances, that it was not written animo testandi; that is, with the serious intension then in the author’s mind that it should be probated as his will. “The rule is that no set form of expression is required. All that is necessary to make an
The Thermopolis letter is not, upon its face, clearly of a testamentary character. Judging from the expressions used in it, the purpose in the mind of the writer was merely to inform the defendant that he had already made provision for her, that Fenton would act as his executor, and to call her attention to the limitation imposed upon her with reference to her uses of the property which she was to receive. There is no expression in it intimating in any way that she was to regard it in any other light than she had regarded any other letter written by him, or that she should preserve it as of any value to her. To say the least, it is of doubtful import, and must be interpreted in the light of the attendant circumstances. In the light of the circumstances under which it was written, it seems clear that it was not intended to be a will. Though Noyes was then ill, he was not in extremis. He had already executed a will, .as he supposed, and left it with Fenton, his executor. He refers to this fact and recites the main provisions of the instrument, assuming that Fenton would act as his executor, but does not use terms expressive of a present intention to appoint him Ms executor. That it was the result of a desire on the part of the writer merely to convey to the defendant the information
Under the rule declared by the statute, an instrument should be so construed as to prevent intestacy; yet courts may not declare a paper to be a testamentary disposition of an estate when it does not clearly appear that such was the intention of the person executing it. In the ease of In re Richardson’s Estate, 94 Cal. 63, 29 Pac. 484, 15 L. R. A. 635, the court considered a. writing very similar to the one here involved, and held that it did not show a testamentary intention. In Barney v. Hayes, supra, it appeared that the testator had not already made provision for his wife, and had lodged with the attorney who had charge of the will a letter which clearly expressed his desire that she should have her share of his estate; even so, the decision should not be held controlling, except in eases where the facts and circumstances are substantially the same.
The judgment is affirmed.
Affirmed,.
Dissenting Opinion
I dissent from the conclusion reached by the majority of the court, in so far as it holds that the letter written by Noyes from Thermopolis is not a valid holographic will.
1. It is conceded in the agreed statement of facts that the letter was entirely written, dated and signed by the hand of Noyes, and by this concession every requirement of our Codes relating to holographic wills must be held to have been fully met. The rules governing the interpretation of wills, as prescribed by the Codes, evidence an intention on the part of the legislature that, when one who is qualified to make a will complies with the formalities which the law deems necessary for the protection of property, the utmost liberality shall be exercised in interpreting his acts, to the end that his intention,,
With this rule in view, the courts have held that, if the paper by any fair intendment can be said to evidence the purpose of the writer to make posthumous disposition of his property, it will be declared to be a valid will, even though in form it is a deed, a check, a bond, a contract, a letter, a diary, or an indorsement upon a certificate of membership in a beneficial society. The authorities in support of this view are collected at length in the notes to 30 American and English Encyclopedia of Law, second edition, 575. It is a well-recognized rule that no particular form of words is necessary to make a will. The form of the instrument is immaterial if its substance is testamentary, and the reason for the rule is aptly stated in 30 American and English Encyclopedia of Law, second edition, 571, as follows: “There are no instruments more frequently written by unpraetieed hands, or in which less formality or precision is required, than wills. In whatever language they may be couched or however incorrectly and bunglingly drawn, if they are duly executed, and the intention of the testator can be ascertained, they are valid and effectual to pass property of any kind or amount. Great allowance should be made for the ignorance of testators and the incorrectness of the language used by them. Uneducated men may make wills as well as others, and if upon the inspection of the whole instrument, duly regarding the situation and intelligence of the testator, his intentions can be satisfactorily ascertained, they must be carried into execution.”
In Appeal of Knox, 131 Pa. 220, 17 Am. St. Rep. 798, 18 Atl. 1021, 6 L. R. A. 353, the instrument offered for probate was written in lead pencil, and is as follows: “A few little things I would love to have done: Always keep Vicie and Pet, if possible. Mama to have everything she wants, with a few exceptions of remembrances. Please let sister have my house
In Webster v. Lowe, 107 Ky. 293, 53 S. W. 1030, the writing begins: “I was born December 28, 1804.” It then recites the history of the writer to 1859 when he moved into town with Charley Webster and others, and then concludes: “I bought the property on 3d & Main, lent Charley some money, and he entered the grocery business. Our arrangement was that he could have the use of the building as long as he may require it, so that it brought me in ten per cent, on the purchase price, which was $1,550. The rent has been paid regularly. He has done much improvements about it, and I have requested my executors to give a clear deed for the property, after my death, to Maggie, his wife, and Charley.” This was held to be a valid will.
In Clarke v. Ransom, 50 Cal. 595, the following writing: “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”—was admitted to probate as a valid will.
In Succession of Ehrenberg, 21 La. Ann. 280, 99 Am. Dec. 729, the following was held to be a valid will: “New Orleans, September 15, 1859. Mrs. Sophia Loper is my heiress. G. Ehrenberg.” “New Orleans, March 16, 1861. The legatee’s name is correctly spelt Loeper. G. Ehrenberg.” On the back of the instrument is written the following: “Ehrenberg’s will, to be opened by S. B. Patrick, who will see it executed. A copy of this will is left in the hands of the heiress.”
In Milam v. Stanley (Ky.), 111 S. W. 296, 17 L. R. A., n. s., 1126, a letter written by a father to his daughters containing this provision: “I want to make you and Lulu a deed to that house and lot and I don’t want you and her to ever have any trouble over it”—was held a valid will to transfer the house and lot mentioned.
In Alston v. Davis, 118 N. C. 202, 24 S. E. 15, the instrument held to be a valid will was a letter written by Augustus Davis at Stockdale, Texas, to his sister in North Carolina, which contained this provision: “If I should die or get killed in Texas the place must belong to you.” There was not any suggestion in the letter that it should be preserved. It was offered for probate seven years after it was written.
In Byers v. Hoppe, 61 Md. 206, 48 Am. Rep. 89, the instrument proposed for probate was an indorsement on the back of a business letter. The material portion of the indorsement is as follows: “And Ann, after my death you are to have forty thousand dollars; this you are to have, will or no will. Take care of this until my death.” Speaking of this, the court said: “In our opinion these concluding sentences: ‘And Ann, after my death you are to have forty thousand dollars; this you are to have, will or no will. Take care of this until my death’— accompanied by the direction, ‘To Eliza Ann Byers,’ evince just as effectually, in legal contemplation, that the writer wrote them animo testandi, as if he had said in terms: ‘I hereby will and bequeath to Eliza Ann Byers forty thousand dollars, to be paid to her at my death out of my personal estate.’ ”
In Outlaw v. Hurdle, 46 N. C. 150, the following was held to be a valid will: “It is my wish and desire that my good friend and relative Dr. Joseph B. Outlaw have all my property of every description. Dec. 20, 1848. David Outlaw.”
It would be idle to multiply examples. The books abound with them, though the decisions are not uniform. It is also a rule of well-nigh universal recognition that it is not necessary that the testator employ any of the words “give,” “bequeath,” or “will,” if his intention can be gathered from the language actually employed.
The letter written by Noyes from Thermopolis to my mind clearly evidences the intention of the writer that Mrs. Gerard should have all of his property after the payment of claims against his estate. The property was to pass to her at his death. The provision thus made for her, however, was revocable during the lifetime of Noyes; but, since there was not any revocation, the letter should have been admitted to probate as a valid will. Section 4772, Revised Codes, provides: “Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.” In my judgment this case cannot be distinguished in principle from Barney v. Hayes, 11 Mont. 99, 27 Pac. 384; 11 Mont. 571, 28 Am. St. Rep. 495, 29 Pac. 282.
2. It is urged, however, that the instrument is conditional, and, since Noyes did get back to Laurel, Montana, alive, the condition failed, and the instrument is invalid as a will for Chis reason. The subject of conditional wills has received much attention from courts and text-writers, and, while the decisions are not altogether uniform, the following rules are approved by the decided weight of authority: “(1) If the contingency expressed in the instrument is referred to as the occasion of making the will at that time, it is not, in that event, contingent; but if it is referred to as a reason for disposing of the property in a certain way, and the disposition and the contingency are
In view of'all the surrounding circumstances, can it be said that Noyes only intended that Mrs. Gerard should inherit his property if he died in Wyoming, but if he returned to Montana alive she should not? That such was not his intention this record demonstrates beyond a doubt. For more than five years prior to his death he had at all times intended that she should receive practically all of his property at his death. He so declared in his attempt to draw a holographic will in 1903; and again in 1907, when he executed the so-called “Fenton will,” he made manifest his intention in unmistakable terms. In the letter he recites his condition and manifests a doubt as to his recovery. Under these circumstances and the rules announced above, it is clear to my mind that the language, “If I never get back alive,” was intended to mean, “At my death,” and was the expression of the motive which prompted him to write the letter, and that his return to Montana alive was not a condition upon which the devise should become effective. Section 4763, Eevised Codes, provides: “A will is to be construed according to the intention of the testator.”
