160 P.2d 432 | Mont. | 1945
Lead Opinion
This is an appeal from an order admitting to probate a warranty deed, a bill of sale and a letter as the holographic will of deceased.
John H. Watts, a long-time resident of Ravalli county, Montana, lost his wife in 1935 and thereafter lived alone on a 40-acre farm owned by him and located about 5 miles from Hamilton where, on April 14, 1943, he died at the age of 87 years leaving surviving him as his heirs, a sister, Mrs. Ida Choate, residing in the state of Oklahoma, a brother, James Watts, residing in the state of California, and the children of deceased sisters and of a deceased brother, none of whom were residents of the state of Montana.
At the time of his death the decedent owned the aforesaid farm together with certain livestock, machinery, implements, tools, household goods and equipment located thereon. In his house he had $845 in money. In a safety deposit box, which he *507 had rented in a bank in Hamilton, he had 4 certificates of deposit aggregating $3,200 and 13 participating certificates of the bank of the par face value of $1,243.89, all payable to his order and also unendorsed. He also had a checking account, deposits and other credits in the bank totaling more than ten thousand dollars.
A search was made to ascertain whether or not decedent had left a last will and testament and for such purpose an officer of the bank, accompanied by the bank's attorney, unlocked decedent's safety deposit box in the bank and found among the contents thereof an undelivered warranty deed to the farm and an undelivered bill of sale of certain personal property possessed by decedent at the time of his death. Both the deed and bill of sale were in favor of Ida Choate, of Wyandotte, Oklahoma, grantee.
Upon learning of decedent's death his sister, Ida Choate, came from her home in Oklahoma to Montana to attend the funeral, following which, on April 21, 1943, the bank's attorney obtained from decedent's safety deposit box the warranty deed and bill of sale and handed them to Ida Choate who purchased United States revenue stamps in the amount of $2.20, affixed same to the warranty deed and then, on the same day, caused the deed to be recorded in the office of the county clerk and recorder of Ravalli county.
Claiming title by virtue of the deed and bill of sale aforesaid, Ida Choate individually sold and conveyed the farm and, at public auction, sold the livestock, household goods and farm machinery, implements, tools and equipment thereon and kept the proceeds of such sales.
Mrs. Choate, being a non-resident, was not entitled to letters of administration but she did have the right to designate a competent resident for the office of administrator and this right she exercised on April 21, 1943, by a written request filed in the district court of Ravalli county requesting the appointment of Kathryn Bryson as administratrix of said estate. The court *508 made the requested appointment and Kathryn Bryson qualified and has since continued to act as such administratrix.
About five months later, Ida Choate filed in the district court of Ravalli county a petition alleging that decedent had made a holographic will which had been delivered to petitioner through the United States mail. The instrument is in the form of a letter alleged to have been sent by decedent from Corvallis, Montana, to Ida Choate and her husband, Joe Choate, at Wyandotte, Oklahoma. The letter is written in lead pencil upon two sides of a single sheet of paper. The original instrument has been certified to this court and is before us as a part of the record. There are 19 lines of writing on the front of the sheet and 13 lines on the back thereof. The wording and punctuation of the letter and of each line are as follows:
"June 9 1936 Corvallis Montana Joe and Ida S a still Her But not Feeling very good two much Rain Been Raing For a Weak Every thing Soak Crops good Will Haing as Soon as the Wether settle this kind of Wethe is Bad For my Rheutism But Whn it Clears up i Will Feel Better My Hans is Pritty Bad Cant Hardley Rite cant see very good Hapen Well ida if any thing To me Find you Will all My Bisnes Fix and in the Citszen Bank Still looks like Rain made ida over every thing Mrs Ellet cone and stade *509 two Day and Wash and clean up Mr Whitsell No Better His lag is Stiff old Bad Not very good But Can talk Bud Not Feeling very good But Still Works at the Carpen trade this a Bout all Got your letter sending Mary Mounment So you can see it Has clerd up Fine Morning Dont no when i will Get To Mail this letter as soon som one come a long "John Watts"
The petition also alleges that the warranty deed and bill of sale are each a part of the alleged holographic will and that they "are the documents and instruments referred to by the said John Watts in the said holographic will, bearing date of June 9, 1936."
Written objections to the petition to probate such instrument were filed by Kathryn Bryson, as administratrix of the estate, and by certain heirs of deceased.
At the trial special interrogatories were submitted to a jury and thereafter the court made certain findings of fact and conclusions of law followed by an order admitting the warranty deed, bill of sale and letter to probate. This appeal is from that order.
The question presented is: Should the warranty deed, bill of sale and letter, or any of them, have been admitted to probate as the last will of John H. Watts, deceased?
"The law makes certain evidence necessary to the validity of particular acts, or the proof of particular facts." Section 10607, Revised Codes. "A last will and testament, except a nuncupative will, is invalid, unless it be in writing and executed with such formalities as are required by law. * * *" Section 10609, Revised Codes.
The formalities required by law for a valid nuncupative will *510 are set forth in sections 6990-6999, Revised Codes; those required for a valid attested will are contained in section 6980, Revised Codes, while the requirements for a valid holographic will are enumerated in section 6981, Revised Codes.
The legislative purpose in enacting section 10609, Revised[1] Codes, rendering a last will and testament invalid unless it be executed with such formalities as are required by law, is stated in Re Noyes' Estate,
"The purpose of the formalities prescribed is to prevent simulated and fraudulent writings from being probated and used as genuine. While the application of the strict rule of construction may sometimes defeat the intention of the testator as manifested by an imperfectly executed and authenticated writing, yet in the long run such statutes tend to promote justice, by lessening, so far as possible, the opportunity for fraud, which history and experience have demonstrated to be feasible and measurably safe in the absence of them. [In re] Estate of Seaman,
"Since the right to make testamentary disposition is dependent upon the will of the Legislature, it is no hardship upon any one that the mode and formalities by which it may be effectively done are made mandatory by the same power. This rule of interpretation is recognized and applied by the courts generally, both in England and in this country, whether the particular formality involved refers to the place of the signature of the testator, or the fact that he signed or made acknowledgment in the presence of the witnesses, or that he made publication, or that the witnesses have properly signed in his presence, and in the presence of each other and at his request. All of these formalities stand as of equal importance, and all must be observed. (Citing cases.)"
The warranty deed and bill of sale herein are on printed forms[2] filled in with a typewriter. No part of the instruments is in the handwriting of the decedent other than the signature "J.H. Watts." There is no attesting clause. There are no attesting witnesses and each of the instruments is invalid, as a last will and testament, under section 10609, Revised Codes, because not executed with the formalities required by statute.
The question now arises as to whether the letter is sufficient under the law to constitute a holographic will.
In Re Major's Estate,
In Re Kisling's Estate, Cal.App.,
In Re Estate of Button,
In Re Tyson's Estate,
In Re Richardson's Estate,
In Re Estate of Branick,
In Thompkins v. Randall,
"The defendants here are the heirs at law of the writer of *515 these letters, and it certainly does not appear with sufficient clearness that the writer intended to dispose of his property by these letters. There is a promise, it is true, to leave the property to the plaintiffs here, at some future time, but the idea of disposing of his property by these letters is by no means clear, and when this is the case the heirs are to be favored and to get the benefit of any doubt affecting their rights. * * * Testamentary intent, we take it, means that the writing offered for probate must have been executed by the testator with the intent that such writing take effect as his last will. The letters offered for probate in this case show an absence of testamentary intent at the time they were written. To construe such letters as testamentary would be to make social correspondence a risky pastime."
In Re Witham's Estate,
In the case of In re Noyes' Estate,
"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 intention then in the author's mind that it should be probated as his will. * * *
"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 as executor. That it was the result of a desire on the part of the writer merely to convey to the defendant the information that he had already provided for her is as clearly the proper interpretation of it, as that by the loose expressions employed he intended to make a new will, and thus to change in entirely *517 unimportant particulars one already supposed to have been executed with solemn formalities.
"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."
The letter to "Joe and Ida" of June 9, 1936, is not, upon its[3] face, of testamentary character. It makes no reference to a will nor does it refer to any paper or writing. There is nothing in the letter that indicates that at the time he was writing it the decedent considered he was making his last will or that he was therein making any testamentary disposition whatever of his property. The letter informed "Joe and Ida" as to the condition of the health of the writer, of Mr. Whitsell and of "Bud"; it informed the addressees of the condition of the weather and of the crops; it informed them that Mrs. Ellet had spent two days washing and cleaning at the writer's home; it informed them that "Bud" was still working at his trade and that the writer had received a letter from them; it informed them that if anything should happen to him "you will Find all My Bisnes Fix and in the Citszen Bank Still looks like Rain made ida over every thing." The letter states nothing relative to what the writer did to "fix" his business. Decedent had large sums on deposit to his credit in a checking account in the bank yet he said and did nothing to "fix" that item of business. Mr. Watts lived for almost seven years after the date of the letter during which time he continued to write checks on such account. He alone and no other person was authorized to write checks or draw on the account. By no statement in the letter did John Watts "fix" his bank account so as to transfer it to his sister or so as to authorize her to take over such item of business nor did the decedent leave any writing purporting to "fix" that part of his business represented by the various certificates of deposit and participating bank certificates all made payable to his order which he kept unendorsed in his safety *518 deposit box. Clearly the letter does not nor was it intended by the decedent to authorize his sister to endorse or negotiate the above certificates.
By his use of the verb "made" in writing "made ida over every thing" the writer was referring to an act and deed done and completed before he wrote the letter. Such statement manifests no present intent that the particular letter which Mr. Watts was then writing should serve as a will or that it should effect a transfer or disposition of any of his property.
The contention is made, however, that when the decedent wrote in the letter "you will all Find My Bisnes Fix in the Citszen Bank" that he was referring to the undelivered deed and the bill of sale then kept by him in his safety deposit box in the bank and that by said reference the deed and bill of sale became incorporated in the letter.
In Brooker v. Brooker,
"We do not attempt to pass on the effect or validity of the above deeds as such. This being a probate proceeding, we here have no jurisdiction to do that. We simply hold that such deeds are not parts of the will."
In Reynolds v. Reynolds, 16 N.J. Misc. 1, 195 A. 721, 722, the court said:
"In the instant case, there is no recital of a devise nor any expression or indication of an intention to devise. The will merely states that the testator had by another instrument conveyed the property to his wife, which, in fact, he had not done. * * *
"The mere recital by the will that the testator had heretofore conveyed the lot in question to the plaintiff shows no such intention on the part of the testator to devise the lot by his will, but simply recites a fact, probably at the time believed by him to be true, to wit, that he had conveyed the property to the plaintiff by deed, which, in truth, had never been done."
The general rule is as announced in the annotation to Witham[4] v. Witham, supra, in 110 A.L.R. at page 264, to the effect that a recital in a will of a conveyance of land which was not in fact made, or which proved to be ineffectual, will not operate as a devise, but that the rights of persons interested must be determined by resort to the instrument referred to. See also Noble v. Tipton,
In Succession of Ledet,
"And it may be conceded at once that a will cannot be made by mere reference to another document not itself a will, or to a former will that is invalid because of want of proper form."
Under the Montana statute, "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." Section 6981, Revised Codes.
The letter purports to be wholly in the handwriting of the decedent while no part of the deed or bill of sale is in his handwriting other than the signature. Furthermore, not having been executed with the formalities required by statute for a will, the deed and the bill of sale cannot be given testamentary effect. Hayes v. Moffatt,
In Hewes v. Hewes,
In re Dimmitt's Estate,
"The testator clearly had no intention of giving Alta J. Pullman anything by will and, in my opinion, this court has established a dangerous precedent in declaring the existence of a testamentary intent which is specifically negatived by the language of the will which is clear and plain."
The majority opinion in the Dimmitt case states: "It is undisputed that the deed was never delivered, and never left testator's possession and control in his lifetime." The Montana statute requires that the transfer of title be "from one living person to another" (Section 6835, Revised Codes) and by another statute in this state the undelivered deed would be ineffectual to vest the interest intended to be transferred (Section 6843, Revised Codes). No doubt Nebraska has similar statutory requirements, yet the ineffectual deed is given life and effect by incorporating it in a will and then giving to the plain words of such will such construction that title to the real estate passed thereunder to the niece despite the testator's clear statement, "I do not devise any real estate to her in this Will." Thus the deed by which the decedent intended to transfer title of *522 the real estate, if and when decedent saw fit to deliver the instrument, failed to effect a transfer while the will which the testator intended should not transfer title to the niece of any real estate was, by interpretation, held to effect a transfer. Delivery is required of a deed but not of a will. The fact that the deed proved ineffectual because not delivered furnishes no excuse for incorporating, by judicial construction, such ineffectual non-testamentary document into the will nor for reading into the dead man's writing a devise which he never placed therein.
Respondent cites and relies upon Barney v. Hayes,
In Re Noyes' Estate, supra, this court, speaking of Barney v. *523 [5, 6] Hayes, supra, said, 40 Mont. at page 242, 106 P. at page 359, "the decision should not be held controlling, except in cases where the facts and circumstances are substantially the same." The facts and circumstances of the instant case are most dissimilar from those of the Barney Case. Here the warranty deed and the bill of sale were not executed with such formalities as are required by the statutes for a last will and testament (Sections 6980, 6981, 6091-6994, Revised Codes) for which reason under the legislative mandate set forth in section 10609, Revised Codes, they are invalid and cannot be given any testamentary effect. Hayes v. Moffatt, supra. The letter of June 9, 1936, is not testamentary in character and its words and language wholly fail to disclose an animus testandi. "The legislative mandates are supreme, and there is no right to make testamentary disposition except upon compliance with those mandates." In re Noyes' Estate, supra [
The order appealed from admitting to probate the three instruments is reversed.
Mr. Chief Justice Johnson, and Associate Justices Morris and Cheadle, concur.
Dissenting Opinion
I do not agree with the result reached in the foregoing opinion. I think a holographic will may, by reference, incorporate another instrument which is not entirely in the handwriting of the testator. This court, in line with the overwhelming weight of authority elsewhere, has held that a holographic will may by appropriate reference incorporate a paper not of a testamentary character and not wholly in the handwriting of testator so as to make it a part of the holographic will. This was so held in In re Noyes' Estate,
That this was not an accidental statement incorporated in the opinion of the court is shown by the fact that the court discussed the matter of showing by extrinsic evidence what existing document the testator referred to. On this point the court said: "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 connection, it is said: `A reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not yet written, or where the description is so vague as to be incapable of being applied to any instrument in particular; but the authorities seem clearly to establish that where there is a reference to any written document, described as then existing, in such terms that it is capable of being ascertained, parol evidence is admissible to ascertain it, and the only question then is whether the evidence is sufficient for the purpose.' So the rule is generally understood and applied."
The court in the Noyes case (Mr. Justice Holloway dissenting) held that the letter in question did not properly refer to any paper and hence no document was to be considered as incorporated in and made a part of the letter. But the case holds squarely that a document properly referred to may be considered as part of the holographic will.
Cases from other jurisdictions holding that existing documents not entirely written, dated and signed by the testator may be considered as a part of the holographic will when properly *525
referred to, and that parol evidence may be resorted to to identify the instrument, are the following: In re Miller's Estate,
Here the letter in question stating "Well Ida if anything happen to me you will find all my bisnes Fix and in the Citszen bank" and "made Ida over every thing," shows plainly that Mr. Watts wanted his sister Mrs. Ida Choate to have all of his property. The documents which were referred to in the Citizens bank were the deed and a bill of sale made out to Mrs. Choate, both being acknowledged before a notary public. He thought these instruments accomplished the same purpose as a will. The fact that technical rules of law prevented the deed and bill of sale standing alone from accomplishing a transfer of his property at death is immaterial.
As was said by the court in Heaston v. Kreig,
This case is not comparable to that of In re Major's Estate,
In the case of In re Kisling's Estate, Cal.App.,
The majority opinion quotes from the case of In re Estate of Button,
The risk in social correspondence pointed out in Thompkins v. Randall,
The majority opinion quotes extensively from the case of Brooker v. Brooker,
On the contrary, there is an equal number of cases taking the opposite view. They are listed in the note in 110 A.L.R. commencing on page 268 and need not be repeated here. When the authorities are about evenly divided on the point, as we find them on this question, I think we should follow those that carry out rather than defeat the plain intention of the testator.
Holographic wills need not be in any particular form. It is enough that the intention is made plain. Barney v. Hayes, supra; Dahmer v. Wensler,
