Stewart v. Stewart

177 Mass. 493 | Mass. | 1901

Knowlton, J.

The Chief Justice at the hearing, found as a fact that if the paper in question “ can operate as a codicil, it was executed anima testandi.”

The paper having been executed with this purpose, there is nothing in its form or substance to prevent its taking effect as a codicil. Osborn v. Cook, 11 Cush. 532. It was sufficiently attested; Ela v. Edwards, 16 Gray, 91.

A paper may be valid as a will which is also in part a contract inter vivas. Cross v. Cross, 8 Q. B. 714. Robinson v. Schly, 6 Ga. 515. It is no objection to the validity of a will or codicil that it only appoints an executor. Sumner v. Crane, 155 Mass. 483.

While the language of this paper does not expressly appoint an executor of the testator’s will, it can be given testamentary effect only by treating it as showing the testator’s intention to have his son, Charles E. Stewart, act as his executor.. So to treat it does not strain the language, when we consider that a large part of the testator’s property was deposits in savings banks, and that the original will gives five pecuniary legacies of $3,000 each. We are of opinion that the form and language of the paper do not preclude us from holding it to be a codicil when we find that it was executed anima testandi.

It is at least doubtful if the report presents the question whether the finding that the paper was executed with a testamentary purpose was warranted. It does not state the evidence, nor does it expressly say that the facts reported are the sole foundation of the finding; but if this question is before us, we are of opinion that enough appears to warrant an inference that the testator signed the paper with this purpose. The will and the two previous codicils were written with his own hand. He dictated this document to his daughter, and directed that three persons be called in to witness the execution of it. In this there is some suggestion that he intended it as a codicil. On the question whether he so intended it, we are of opinion that the fact “that he expressly contemplated the settlement of his estate by his son, in conversations before and after executing this instrument,” is competent, on the same principle as evidence that a paper conforms, or fails to conform, to the previously expressed purpose of one in regard to the disposition of his property, is evidence on the question whether the paper was intelligently executed as his will by a person of sound mind. In the present case the fact is of some significance. He kept the instrument in his own possession until some time after its' execution and then handed it to his son to he used as a power of attorney. “ It was returned to him with a reported statement from a bank that it was no good until after his death, and then was sealed up by him and put away in a drawer in which were his will and numerous other papers.” On the question what was his intention as to the use to be made of the paper, we aré of opinion that his conduct in regard to it immediately after its execution, and continued up to the time of his death with only a slight interruption, seemingly for a special purpose, is competent evidence. Underhill, Wills, § 39. Witherspoon v. Witherspoon, 2 McCord, (S. C.) 520. The nature of his estate, and the fact that the specific things- authorized to be done after his death included a large part of that which would be required of an executor, are also of significance.

While there is no one thing that is sufficient alone to show that the paper was intended to be testamentary, the facts taken together well warranted the finding of the judge.

Decree affirmed.