Opinion by
On June 11, 1902, J. Sperry Willing executed his will, in which he devised a house and lot of ground, No. 1429 Spruce street, Philadelphia, to his executor, in trust, with direction that the same be sold and the proceeds applied to the benefit of St. Mark’s Church. On June 17, 1903, he wrote his attorney, Ernest Zantzinger, Esq., a member of the Philadelphia bar, whom he had named as his executor, the following note :
“ June 17th, 1903.
“ Dear Ernest : I would like to add a codicil to my will as follows: I leave the house and lot 1429 Spruce St., also the contents of the house to Elizabeth Ely. Make it as strong as possible, as I wish her to have them. Will yop. have it done as soon as possible, and let me sign it at once.
“ Yours truly,
“ J. Sperry Willing.”
The request contained in the note was never complied with by Mr. Zantzinger, and his reasons for not complying are immaterial in determining the question before us. On July 1,1903, the testator went away for the summer and died at Platt Clove,
It was conceded below, and is admitted here, that the note to the attorney of the testator, requesting the preparation of a codicil, does not, standing alone, make it such an instrument. This is clearly so. But the contention of the appellee, sustained by the court below, is, that the testimony of Elizabeth Ely, the beneficiary naihed in the note, taken in connection with the indorsement on the envelope, is sufficient to make the note a valid testamentary document. Miss Ely testified that after the decedent had written the note to Mr. Zantzinger, he said he thought he would make a copy of it, in case something should happen; that he did so and then mailed the letter himself; that when he came back from mailing it he asked her to come over to his desk, and said, “ I want you to see where I put it; ” that he took the copy and put it into a little compartment and locked it; that after he had placed it there he said, “ Well, that is done ; ” that after he received a letter from Mr. Zantzinger he went to see the latter, and on his return home said: “ Mr. Zantzinger said I was not in any condition to change this, to make a change in my will,” tó which she replied, “ That is absurd, why don’t you go to some other lawyer; ” that he answered, “ I don’t like to do that, I am afraid I would make Mr. Zantzinger angry,” adding, “ It does not make any difference, you have that paper, and that is all right; ” that the night before he went to New York he said to her, “Will you come over to my desk?” that she went over; that they took the note out and'read it, and she said to him, “ Put that away carefully, it may be-
In Scott’s Estate, 147 Pa. 89, cited by the court below, and relied upon by the appellee as authority for reversing the decree of the register, two witnesses—the statutory number—established not only the decedent’s publication of the letter addressed to his attorney as his last will and testament, but his positive direction that it should be admitted to probate as such. In the letter addressed to his attorney he set forth his will, and, after signing the letter, had it formally witnessed by the person who had written it. After getting out of bed and signing it he handed it to the subscribing witness, telling him to put it in his (witness’s) box in the Fidelity Title and Trust Company, and that it was a good will —“ as good a one as I want.” He further said that the document would be probated ; that it was his will. Another witness testified that he said : “ That is as good a will as can be drawn ; if anything happens to me, have that probated.” In passing upon what was regarded as the important question in the case, Chief Justice Paxson said: “Was the paper sufficiently proved? Not its execution, for that, as before observed, was proved by three witnesses, but the fact that the testator intended it as his will, and declared it to be such. The law requires a will to be proved by two witnesses. We have here two witnesses as to the fact of publication as a will.” That case, as decided under its facts, is not only not to be regarded as authority for appellee’s contention here, but rather against it.
In Harrison’s Estate, 196 Pa. 576, the other case relied on by the court below, the testatrix inclosed certain bonds in an envelope, on which there was the following indorsement signed by her: “June 21, 1897. Six bonds for my brother John’s three daughters, also one for my nephew John Beard, to be sold after my death.” In holding that the indorsement operated as a will we said: “ This is another case of irregular .execution of a testamentary paper which is always to be regretted, but as to which we have sanctioned many departures from the strict requirements of our statute of wills. The one requirement
The orphans’ court was of the opinion, expressed through two of its learned judges, that the indorsement on the envelope in the handwriting of the deceased, “ copy of codicil to my will,” supplied the second witness and was stronger evidence of a declaration by him that the inclosure was really a codicil to his will than could be established by the testimony of any number of witnesses. It does not appear when the indorsement was made. It is to be presumed, in the absence of any evidence to the contrary, that it was made when the copy of the letter was placed in the envelope. If so, it can be regarded as nothing more than an ordinary indorsement put on the envelope before placing it in the safe that its contents might be readily ascertained whenever, with other papers, it would be handled by the testator. If the copy of the note was not in itself a codicil, as is conceded, surely the mere preservation of it by the decedent in the manner stated would not transform the instructions to the attorney to do something in the future for him into a completed testamentary act by himself. He had instructed the attorney to prepare the codicil as soon as possible, that
This is not the case of an irregular execution of a will, and no one of our many cases sustaining testamentary instruments, which have been irregularly executed, has any application. The difference between them and this is the difference of no execution at all. That the decedent intended to devise the house and lot to the appellee is manifest from his note to his attorney, but he could give effect to that intention only in the way provided by the statute. The manner in which the right of testamentary disposition of one’s property is to be exercised is for the legislature, and not for the courts; and though the intention of the decedent to give the house and lot to the appellee ought to be carried out, we are powerless to give it that effect because he failed to do so himself in the only way he could. So it has often happened, and so it will happen again, but it is better that, in the transmission of the estates of the dead to the living, such intentions now and then fail than to be without the written law regulating their valid expression. The decedent intended to act by signing a codicil which he asked his at
The decree of the court below is reversed, and the decree of the register, refusing to admit the alleged codicil to probate, is affirmed, the costs on this appeal to be paid by the appellee'.