Brown v. Avery ex rel. Avery , 63 Fla. 355 ( 1912 )

Shackleford, J.,

(after stating the facts.) — There is no contention over that portion of the order admitting to probate the paper bearing date the 7th day of January, 1911, as the will of Emily C. Wright, deceased. The question which we are called upon to answer is was the paper bearing date the 27th day of June, 1911, properly admitted to probate as a Codicil to such will ? It is conceded that such paper could have no force or effect as to the real estate which it attempts to devise, for the reason that it was not executed in accordance with the requirements of Section 2272 of the General Statutes of 1906, which is as follows:

“2272 (1795) Form of. — Every last will and testament disposing of real estate shall be signed by the testator, or by some other person in his presence and by his expressed directions, and shall be attested and subscribed in the presence of the said testator by two or more witnesses, or else it shall be utterly void and of non-effect.”

It is contended by the appellant that, as such paper has no subscribing witnesses thereto, it is also ineffectual to dispose of the personal property. In support of this contention the appellant relies upon the succeeding section 2273, which is as follows:

“2273. (1796) Revocation of. — No such devise or disposition of lands, tenements or hereditaments, or any part or clause thereof, shall be revocable by any other will or codicil, unless the same be in writing and made as aforesaid; but every such last will and testament, devise or disposition, may be revoked by any other writing signed by the testator, declaring the same to be revoked, or operating as a revocation thereof by law, or by burning, cancelling, tearing or obliterating the same by the testator or by his direction and consent, or by the act and operation of law.”

It is strenuously urged that the provision therein “No such devise or disposition of lands, tenements or hereditaments, or any part or clause thereof, shall be revocable-by any other will or codicil, unless the same be in writing and made as aforesaid,” referring to the preceding section 2272, is conclusive of the matter. This might be tenable if the words “any part or clause thereof,” could properly be construed to refer to any part or clause of the will, but, as an examination of such two sections plainly shows, they relate only to wills of real estate, therefore such words must be held to refer only to a devise or disposition of real estate. We think that the reasoning in McLeod v. Dell, 9 Fla. 451, disposes of this point adversely to the contention of the appellant. We are strengthened in this conclusion by the fact that the very next section in the General Statutes reads as follows:

“2274. (1797) Form of.- — All wills of personal property shall be in writing, and signed by the testator or some other person in his presence, and by his express direction.”

This section made its appearance for the first time in the Revised Statutes of 1892 as Section 1797, but it was practically declaratory of the rule already existing at common law. See Hays v. Ernest, 32 Fla. 18, 13, South. Rep. 451. It will be observed that at the time of the execution of the will discussed in that case the statute required three or more subscribing witnesses to a will devising real estate. This statutory requirement remained in force until the adoption of the Revised Statutes of 1892 section 1795, of which reduced the number of witnesses from three or more to two or more. This section was incorporated in the General Statutes of 1906 as section 2272, which we have copied above. It was expressly held in Hays v. Ernest supra, that “A will executed in this State in the year 1885, purporting to devise both real and personal estate within this jurisdiction, but signed by only two subscribing witnesses is valid as to the personalty, if valid in other respects, though inoperative as to the real estate.” Squarely in line with this holding, we must hold that the paper bearing date the 27th day of June, 1911, purporting to devise both real and personal estate within this jurisdiction but with no subscribing witnesses thereto, is valid as to the personalty, if valid in other respects, though inoperative as to the real' estate. Having determined this point, we must now determine whether or not such paper was valid as a will in other respects. In other words, was it amenable to the other grounds urged against it in the petition of the appellant?

As was set out in the statement preceding this opinion, Louise Avery, one of the appellees, interposed a demurrer to this petition, the sustaining of which forms the basis for this appeal. Sections 2279 to 2283 inclusive of the General Statutes of 1906 provide for the contest of wills before probate, and one of such provisions is that a demurrer may be filed by one of the parties in interest to the petition, resisting the probate of the will, in order to test the legal sufficiency of such petition. Section 1710 of the General Statutes of 1906 provides that appeals from the County Judge to the Circuit Court in probate matters, as also appeals from the Circuit Court to the Supreme Court “shall be governed in all respects by the law and rules regulating appeals in chancery.” From these statutory provisions it is manifest that the Legislature contemplated and intended that the practice prevailing in a court of. equity should be observed, as nearly as may be. It is a well settled principle of equity practice that, “While a demurrer to the whole bill operates as an admission that all the allegations in the bill which are well pleaded are true, it is only such allegations' so pleaded that are admitted by the demurrer.” McClinton v. Chapin, 54 Fla. 510, 45 South. Rep. 35, 14 Ann. Cas. 365. As was also, held in H. W. Metcalf Co. v. Orange County, 56 Fla. 829, 47 South. Rep. 363, “The effect of a demurrer is to admit the truth of all the facts that sufficiently appear by the bill of complaint, and to assert that in the particulars stated in the demurrer the bill is insufficient to show a cause of action. While all facts necessary to be proven should be alleged it is sufficient if the ultimate facts be stated without details or the circumstances that are comprised within or that go to prove the ultimate facts. Allegations- of mere conclusions of -law are not traversable, need not be alleged, and, if alleged, may be treated as surplusage; and they are not admitted by a demurrer, for the law is to be ascertained by the court. But all facts sufficiently alleged and the conclusions necessarily resulting from facts stated are admitted by the demurrer.” We might add that this principle is also true of a demurrer interposed in an action at law. See Atlantic Coast Line R. R. Co. v. Crosby, 53 Fla. 400, 43 South. Rep. 318, wherein we held that “It is elementary that a demurrer admits the truth of all such matters of fact as are sufficiently pleaded.”

It is incumbent upon us to determine what matters of fact are sufficiently pleaded in the petition to be admitted as true by the demurrer. We have already disposed of the allegation-that the paper, the probate of which was contested by the appellant had no subscribing witnesses thereto, by holding that such witnesses were not requisite, in so far as the disposition of the personal property was concerned. The other allegations contained in the petition reduced to their ultimate analysis, in effect simply charge that Emily C. Wright did not intend that such paper should operate as her last will and testament. The appellant also proceeds to set forth in her petition her reasons in support of her contention that such paper was not executed with testamentary intent. It will be observed that no fraud, deception, undue influence, forgery, lack of testamentary capacity, or the like, is alleged in the petition. We also call attention to the fact that, at the time such paper bearing date the 27th of June, 1911, was produced and offered for probate, the affidavit of John C. Avery, Esquire, who offered such paper, was also filed, which affidavit we have copied in the statement preceding this opinion. Such affiant states that he was well acquainted with the handwriting of Emily C. Wright and that such paper was in her handwriting and that the signature thereto was her genuine signature. The question before the County Judge was whether or not such paper was entitled to probate. In determining it he had before him such paper and affidavit, petition and demurrer thereto. The statement contained in Judge Avery’s affidavit that the paper so offered for probate was in the handwriting of the alleged testatrix and that the same was signed by her was not denied by the appellant. We have a number of decisions to the effect that, “In the construction of a will-, the intention of the testator, as therein expressed, shall prevail over all other considerations, if consistent with the principles of law. To this first and great rule in the expision of wills, all others must bend.” Lines v. Darden, 5 Fla. 51. Also see Lott v. Meacham, 4 Fla. 144, text 152; Russ v. Russ, 9 Fla. 105; Robinson v. Randolph, 21 Fla. 629, text 644 58 Am. Rep. 692; Floyd v. Smith, 59 Fla. 485, 51 South. Rep. 537. As was well expressed in Russ v. Russ, supra, “The intention of the testator is the polar star to guide in the construction of a will.” This intention must be ascertained from the will itself, if it be,possible to do so. Parol evidence is admissible only' to explain a latent ambiguity or the like. In addition to the authorities already cited, see McLeod v. Dell, 9 Fla. 427, and Jenkins v. Merritt, 17 Fla. 304. That the rule which we have adopted is in line with the general rule upon the subject, see 30 Amer. & Eng. Ency. of Law (2nd ed.) 661, 662, 673, 674,and the authorities cited in the notes. Why should not a like rule be adopted as to ascertaining •whether or not a written instrument executed by a party, purporting to be his last will and testament, was so intended by such party ? Are not the two cases analagous ? In the instant case we have a paper which is in the handwriting of the alleged testatrix signed by her, fair and regular upon its face, free from any ambiguity and in which her intention as to the disposition of her property is clearly expressed. Such paper also directly refers to the paper bearing date the 7th day of January, 1911, executed by her as her will and testament and clearly sets forth her reasons for making certain changes in the disposition of her property. This being true, what occasion is there for resorting to parol testimony in order to ascertain her testamentary intention? Would it not be far safer to let the instrument speak for itself as to such intention ? We think so. We recognize the fact that the authorities are divided upon this point. We have examined the numerous authorities cited to us by the respective counsel for the parties litigant, as well as others, though we shall refer to only a few of them. The instant case in many respects is so unlike most of the cases which have been called to our attention or which we have found that no useful purpose would be subserved by citing and discussing such cases. One of the most nearly in point cases which we have found is Toebbe v. Williams, 80 Ky. 661. In that case the testator wrote and signed a paper and afterwards went to an attorney and submitted it to him for such corrections and suggestions as he might think advisable. “The attorney read it over and made four unimportant suggestions in pencil between the lines of the pen and ink writing and in the unoccupied space at the end of lines, there being no blanks in the will.” He also ran his pencil over certain words, but left them plain and easily to be read. The attorney also told the testator that in the State of Kentucky a will wholly written by the maker did not require any witnesses, but that a will not so written did require witnesses and gave the testator a form of attestation, written in pencil on a scrap of paper, which the testator carried away with him. As is further stated in the opinion: “The will was found after his death in a box under his bed. It was in wrappers on which was written the words ‘Old Will,’ ‘Will’ ‘Will and map,’ and ‘Winchester account,’ and an old form or unfinished will and the Winchester account were with it in the wrappers. Following Daly’s (the testator’s) name, on the last page, is an attestation in form like the one written by the attorney, but not signed by any witnesses. The probate of the paper was contested on the ground that it was not a completed will.” We will add that the will was not re-written, but was found with the pencil suggestions therein made by the attorney.- We copy the following excerpts from the opinion:

“If the paper was wholly written and subscribed by Daly, with the intention of making it his will it was his will, although he may not have thought it was a completed paper by reason of a mistaken notion on his part that the law required witnesses to such a paper. It was a complete and lawful will when he presented it to the attorney for verbal suggestions.”

“And whether, according to Ms 'mind, it was a completed paper or not, if he intended it as his will and had complied with the forms of law by writing and signing it himself before'the pencil suggestions were made, it is his will, and it ought to be probated notwithstanding he sought the verbal suggestions which he did not adopt, and erroneously believed that the attestation of witness was necessary, or contemplated the possibility of a change of mind, when he might be unable to write or desire some other person to write a will for him when the attestation form would be important.”

“Evidence of verbal statements made by the testator, after making his will, according to the forms of law to the effect that he has not made a will, do not constitute a revocation and possess but little value and when permitted to go to the jury they should be instructed that such statements do not tend to prove revocation, and furnish no light in construing the written acts of the testator.”

If this is a correct statement of the law, as it would seem to be, it would not have availed the appellant, even if she had been permitted to offer'testimony in' proof of all the facts stated in her petition. See also the following authorities, which bear upon the point we are now considering: Myers v. Hoppe, 61 Md. 207 48 Amer. Rep. 89; McBride v. McBride, 26 Gratt. (Va.) 476; Whyte v. Pollok, L.R. 7 App. Cas. (Eng.) 400, 47 L.T. N. S. 356, 47 J. P. 340; Barwick v. Mullinge, 2 Hag. *225. The discussion and reasoning in Barnewall v. Murrell, 108 Ala. 366, 18 South. Rep. 831, will also prove helpful. This being true, it would follow that the demurrer to the petition was properly sustained. As to the construction put upon the paper in question by the appellant, as set forth in her petition as to the intention of the testatrix, we are of the opinion that it must be held to be simply the conclusions drawn by the appellant which were not admitted by the demurrer. See Dillon v. Barnard, Fed. Cas. 3915, which was affirmed in 21 Wall. (U. S.) 430; 16 Cyc. 277; 12 Ency. of Pl. & Pr. 1026 to 1030; 6 Ency. of Pl. & Pr. 336 to 338. Certainly a demurrer does not admit as true allegations which the law would not allow to be proved. See Rivers v. Brown, 62 Fla. 258, 56 South. Rep. 553, holding that a demurrer was properly sustained to a plea, Avhich sought to. lay the foundation for the-introduction of parol testimony to contradict the terms of a written instrument upon which the action was based. To the like effect are Solary v. Stultz, 22 Fla. 263, and Booske v. Gulf Ice Co., 24 Fla. 550, 5 South. Rep. 247, which are cited in Rivers v. Brown, supra, together with authorities from other jurisdictions. As to whether or not parol evidence is ever admissible for the purpose of showing that an instrument, purporting to be a will and properly executed as such was not intended as a will, there is much conflict in the authorities as we have previously stated. To admit such evidence is undoubtedly to make a special exception to the Hearsay rule. See 3 Wigmore’s Evidence, section 1736, where a number of authorities will be found collected. See also In re Kennedy, 159 Mich. 548, 124 N. W. Rep. 516, 28 L. R. A. (N.S.) 417, 18 Ann. Cas. 892, especially the notes, citing authorities on either side of the question; Heaston v. Krieg, 167 Ind. 101, 77 N. E. Rep. 805, 119 Amer. State Rep. 475. In the note found on page 897 of 18 Ann. Cas., the editor states that “The weight of authority supports the rule that evidence is admissible to show that an instrument purporting to be a will and properly executed as such, was not intended to operate as a will but was executed with some other purpose or object in view.” _ Judge Freeman took the other view and adhered thereto. See his full note on page 167 of 52 Amer. Dec. and his subsequent note found on page 640 of 70 Amer. State Rep. One of the leading cases in support of the doctrine that parol evidence is admissible is Fleming v. Morrison, 187 Mass. 120, 72 N. E. Rep. 499, 105, Amer. St. Rep. 386, but the reasoning therein does not appeal to us. In re Kennedy, supra, is more forcibly and clearly wrought out and seems to us to find support in the better-reasoned authorities. We have given this question a most careful investigation and have examined all the authorities bearing theron which have been cited to us as well as such others as we have been able to find. We have reached the conclusion that, as a general rule, parol evidence is inadmissible for the purpose of showing that an instrument purporting to be a will fair and regular on its face, properly executed as such, was not intended to operate as a will. Even if it be conceded that there may be cases which might call for an exception to this rule, we are clear that no such case is presented here.

We are of the opinion that the demurrer to the petition was properly sustained and that the instrument in question was entitled to be probated as a codicil to the will. It necessarily follows that the order appealed from must be affirmed.

Whitfield, C. J., and Taylor, Cockrell, and Hocker, J. J., concur.