8 App. D.C. 452 | D.C. | 1896
delivered the opinion of the Court:
i. With respect to the first ground of objection taken to the granting of the relief prayed, we think it cannot be sustained. While the vestry of St. John’s Church may not have a legal interest in the subject-matter involved, it clearly has such parochial interest in the charity placed in its charge as to entitle it to bring to the attention of a probate court the instrument in question, and ask for its admission to probate. Any interest, however slight, and even, it'seems, thebare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper (i Wms. on Exrs. 285); and for like reason, such interest entitles a party to insist upon probate.
2d and 3d. The séco'nd and third grounds of objection may be considered together. And as to the right of the petitioners to ask for the probate of the paper, notwithstanding the previous order of the 28th of October, 1892, we* ’think/ there can be no doubt. As we have seen, the petitioners • were not- parties to the previous order or to the proceedings upon which it was founded, nor had they any notice of' such proceedings. There was no contest or litigation as to the right of parties interested to have the paper admitted to probate; and the order refusing probate appears to have been passed by the. consent-, or at least without objection, of the heirs at law and next of kin of the deceased — parties directly interested in having the “ written instrument” declared against as not being a part of the will, or as not being entitled to probate as an independent paper to affect personal property. There is no doubt of the general principle, that a legatee cannot set up a-will or codicil, after it has been put in contest and litigated between the executor and next of kin, or between the executor and the executor of another will, and pronounced against, unless he can show that the parties agreed, to set aside the will by fraud or collusion, or that there has been such neglect or misman
It is certainly a well-settled principle in the law of wills, that a testator may so construct the disposition of his property as to make it necessary to have recourse to some paper or document in order to explain his intention, and to apply the provisions of his will to the subject-matter thereof. This is done by virtue of the principle of incorporation of the paper or document referred to into the will as part thereof; the will, in all other respects, being duly, executed and attested as required by the law. In such case, the proof of the will sets up and establishes the paper referred to as a portion of the will itself, by force of the reference and the consequent incorporation. I Jarm. oti Wills (5th Ami ed.) 228 to 231; 1 Redf. on .Wills, '263, 264. Whether' the extrinsic paper -or document professes on its face to be testamentary or not would seem to be immaterial ; as its claim to be considered as part of the will is founded, not on its own independent efficacy, but on the fact of its adoption by the duly attested and formally executed will. It must, however, be clearly identified as the instrument to which the will refers, to entitle it to be considered as part of the will, and it must, moreover, be in existence at the date of the will. In this respect there should be no ambiguity. Therefore, a reference to a document as “made or tobe made” gives strong ground for concluding.that the document had not already been made; and so a reference to persons or things “hereafter named," or to “ the annexed schedule,” is not so clear a reference to
As illustrative of the principle of incorporation of extrinsic documents by reference, and the effect thereof, we may refer to the case of Quihampton v. Going, 24 W. R. 915, and as stated in the text of Jarman, to the effect, that where a testator referred to certain entries he had made in his ledger, as explaining his will, Sir George Jessel, M. R., held that the ledger was incorporated with the will, and, though not admitted to probate, could be looked at by a court of construction, and that the entries therein were for the purposes of distribution of the estate conclusive; that is to say, the entries were treated by the learned master of the rolls as part of the will, and not merely as evidence. 1 Jarm. on Wills, 231, 232. In that case the entries were clearly referred to as existing at the dptfe of the will.
In the case of Singleton v. Tomlinson, 3 App. Cas. 404, the testator died on the 27th of October, 1872, and the will was proved in the probate court on the 28th of December, 1872, but the grant of probate was confined to the three sides of the sheet of paper, and was refused probate as to the fourth side thereof. That fourth side contained a writing headed “ Schedule referred to within,” being a schedule of the testator’s landed property. It was signed by him, and bore the same date as the will, but was not attested. On that state of case, without laying any stress whatever upon the fact that the fourth side of the sheet of
In the case now before us, though the head date would indicate that the' “ written instrument” had been prepared the day before the date of the will, yet the context of the will, and the concluding paragraph of the 1 ‘ written instrument” itself, would seem to make it clear beyond doubt that the “ written instrument,” though in contemplation of the testatrix at the time of making the will, was not completed and made a definitely concluded instrument, until nearly two months after the date of the will. It is true, that by what is denominated a codicil to the will, dated May 23, 1889, and admitted to probate, though attested only by a single witness, the instrument theretofore mentioned in the will is referred to. But that codicil of the 23d of May, 1889, as we have before stated, relates wholly to after-acquired real estate, and is without legal effect, because not executed according to the requirement of the statute. Not being executed and attested in ■any more solemn and formal-manner than the instrument referred to, it can hardly be relied upon as a republication to make such .instrument a part of the will.
But the “written instrument” referred to, and which, was refused probate by the court below, as not being part of the original will, is a paper of a testamentary character' and as an independent instrument, affecting personal property only, would seem to be clearly entitled to admission to probate. It is clearly established that a testator may make
L It is not, however, the province of a probate court to become a court of construction; that function belongs to the ordinary courts of law or equity. Hence, though this written instrument of the 26th of January, 1887, be admitted to probate, it will remain for a.court of construction .to determine whether the charity therein provided for is of such, legal validity as- to be capable of enforcement. In determining the instrument to be entitled to probate, we determine only that it is of a testamentary character, and
It follows that the order appealed from must be reversed, and the cause be remanded, to the end that proof of the execution of the paper be taken, and if proved that the same be admitted to probate, in accordance with the foregoing opinion.
Order reversed, and cause remanded.
