Noyes v. Gerard ( 1909 )

MR. CHIEF JUSTICE BRANTLT

delivered the opinion of the court.

Section 4766, Revised Codes, declares: “Several testamentary instruments, executed by the same testator, are to be taken and construed together as one instrument.” And that this is done is not infrequently the case. (Estate of Murphy, 104 Cal. 554, 38 Pac. 543.) “Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.” (Revised Codes, sec. 4772.) It will be noted, however, that these provisions of the statutes are rules of interpretation merely, and have nothing to do with the prerequisite steps which must be shown to have been taken in executing it, before any paper may be regarded as of a testamentary character. Until these appear to have been taken by the testator, the paper never assumes a testamentary character. It is a mere nullity. (Estate of Noyes, ante, p. 178, 105 Pac. 1013.) Two wills by the same testator, in the execution of both of which the statutory requirements have been met, must therefore be construed together, unless the former has been revoked by the testator as prescribed by the statute. (Revised Codes, secs. 4741, 4746, 4747.) So, also, a paper not of a testamentary character is to be construed with one having that character, whenever the latter has, by appropriate reference to the former, incorporated it within itself, thus giving it also a testamentary character. (Barney v. Hayes, 11 Mont. 99, 27 Pac. 384; 11 Mont. 571, 28 Am. St. Rep. 495, 29 Pac. 282; In re Skerrett, 67 Cal. 585, 8 Pac. 881; Estate of Plumel, 151 Cal. 77, 121 Am. St. Rep. 100, 90 Pac. 192.)

It having been heretofore determined that neither the paper, which may be designated as the “Fenton will,” dated May 4, 1907, nor the one offered for probate as a holographic will, purporting to be dated February 23, 1903, is valid for any purpose (ante, pp. 178, 190, 105 Pac. 1013, 1017), the solution of the first question submitted for decision turns upon the answer to the inquiry: Does the Thermopolis letter contain such a reference to either or both of them as to require them, or either of them, to be regarded as a part of it? In the prosecution of this inquiry we are not aided by section 4736, Revised Codes, which declares: “The execution of a codicil, referring to a previous will, has the effect to republish the will, as modified by the codicil”—for the term “will” as used in it, clearly means a document which itself has testamentary character. At the same time the sufficiency of the reference is left open to inquiry to be determined by the facts of each particular case. The rule which is recognized by the decisions may be stated thus:- The' reference must be such a description of the instrument in question as to manifest the intention of the testator to incorporate' it in, and make it a part of, the paper propounded. In Allen v. Maddock, 11 Moore P. C. 427, 14 Eng. Rep., Full Reprint,, p. 757, the testatrix had executed a paper beginning: ‘‘This is: a codicil to my last will and testament. I bequeath to my faithful servant,” etc. It was not written upon the same paper as the will referred to (an imperfectly attested paper), nor was it attached to it nor found in the same depository. In discussing the character of the reference necessary, the court said: “No doubt the rule of law is, as stated by Lord Eldon in Smart v. Prujean, 6 Ves. 565, that ‘an instrument properly attested., in order to incorporate another instrument, not attested, must, describe it so as to be a manifestation of what the paper is,, which is meant to be incorporated. ’ For this purpose it is necessary that it should be so described as to leave no doubt in the' mind of the judge, in the circumstances as they actually existed and are proved before him, that the paper referred t& is-the paper propounded.” Parol proof was resorted to in order-to identify the paper referred to, the court remarking that this resort must be had in order that it might be made to appear-what papers there were at the date of the codicil which would answer the description therein.

The language employed in the statement of the rule in this, case, and in Smart v. Prujean, as well as the discussion touching the admissibility of evidence in Allen v. Maddock, clearly excludes the use of it for any other purpose than the identification of a writing mentioned in the testamentary paper as such and as then in existence. The rule as stated does not contemplate the introduction of proof to demonstrate that the language used was intended to be a reference to some other instrument. 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. (Dickenson v. Stidolf, 11 Com. B. 341; Brown v. Clark, 77 N. Y. 369; Estate of Skerrett, supra; Estate of Plumel, supra; Estate of Young, 123 Cal. 337, 55 Pac. 1011; Hobart v. Hobart, 154 Ill. 610, 45 Am. St. Rep. 151, 39 N. E. 581; Beall v. Cunningham, 3 B. Mon. (Ky.) 390, 39 Am. Dec. 469; Phelps v. Robbins, 40 Conn. 250; Bryan’s Appeal, 77 Conn. 240, 107 Am. St. Rep. 34, and notes, 58 Atl. 754, 68 L. R. A. 353; 1 Redfield on Wills, 4th ed., 261 et seq.; Schouler on Wills, 3d ed., secs. 281, 282; 30 Am. & Eng. Ency. of Law, 2d ed., 551.)

The Thermopolis letter does not refer either directly or indirectly to any paper whatsoever. In the absence of extrinsic ■evidence showing that Noyes had left the two imperfectly executed wills in the hands of Fenton, there is nothing to indicate that any testamentary paper was in existence anywhere. That some of the provisions of both wills are recited was clearly for the purpose of conveying information to the defendant of the solicitude of the testator in her behalf, and not to ratify anything already done or to republish either or both of the wills which he had theretofore attempted to execute. The district court therefore correctly answered the first inquiry in the negative.

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 intension then in the author’s mind that it should be probated as his will. “The rule is that no set form of expression is required. All that is necessary to make an instrument testamentary is that it should show, when read in connection with surrounding facts and circumstances, a testamentary intention.” (Page on Wills, p. 60; see, also, Redfield «on the Law of Wills, 174; 1 Williams on Executors, 148; Schouler on Wills, 3d ed., sec. 273.) If the paper propounded is clearly of a testamentary character, it speaks for itself; but, if the intention of the testator is left in doubt by the form of expression used, then the intention must be arrived at by considering it in the light of the surrounding circumstances, and the intention must clearly appear. (McBride v. McBride, 26 Gratt. (Va.) 476.) The books abound in cases in which informal instruments have been, on the one hand, admitted to probate, or, on the other, held not to be testamentary in character. No rule can be stated that will apply to all cases. Each must be determined upon its own facts.

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 Ms 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 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. In the ease of In re Richardson’s Estate, 94 Cal. 63, 29 Pac. 484, 15 L. R. A. 635, the court considered a. writing very similar to the one here involved, and held that it did not show a testamentary intention. In Barney v. Hayes, supra, it appeared that the testator had not already made provision for his wife, and had lodged with the attorney who had charge of the will a letter which clearly expressed his desire that she should have her share of his estate; even so, the decision should not be held controlling, except in eases where the facts and circumstances are substantially the same.

The judgment is affirmed.

Affirmed,.

Mr. Justice Smith concurs.