Hatheway v. Smith , 79 Conn. 506 ( 1907 )

The decree of the Court of Probate of December 19th, 1902 (subsequently confirmed by the Superior Court), may have determined only the admissibility to probate of an express written revocation of all former wills executed with the formalities prescribed for the execution of a will, and does not foreclose the question raised at the hearing before the Court of Probate upon the order of distribution, and before the Superior Court upon appeal from that order, and presented to us by this reservation. That question is: Does the writing thus admitted to probate contain any devise or bequest by Roxey Foss? If it does not, then the estate must be distributed as intestate estate, for clearly no devise or bequest can be established by parol evidence, or by documents which for purposes of proof must be treated as parol evidence. The answer to this question depends upon the meaning of our statute of wills and distribution.

"A will is the legal declaration of intention as to the disposition of one's property after death. To this intention, made known through the written declaration, the law gives effect, and so executes the testator's will." Jacobs v. Button, 79 Conn. 360, 362, 65 A. 150.

"Will," as here used, does not mean a writing containing a formal declaration that it is the last will and testament of the testator, but means the bequests and devises made by the testator and expressed in writing and made known through the writing in the manner prescribed by law. No other declaration of intention is legal. Each bequest thus expressed and made known in writing is the "will" of the testator, to which the law gives effect and executes as his will.

The disposition of property by will is a matter for local statutory regulation, and is regulated by our statute of wills. General Statutes, §§ 292, 293. The provisions of that statute "are not only directory but prohibitory and exhaustive." Irwin's Appeal, 33 Conn. 128, 135. The theory of our statutes is based upon our settled public policy. "Certain formalities of execution and attestation are prescribed as prerequisites to the validity of a will, and without compliance with which it is no will at all, although it is clearly a wish. . . . So that our statute amounts to a positive rule for the transmission of property, which must be complied with, as a complete act at the time of execution, or never, so far as the act of the testator is concerned. . . . Our law in effect says to every person who would make a valid disposition of his property by will, that he must observe the specified formalities." Lane'sAppeal, 57 Conn. 182, 187, 17 A. 926. The right to dispose of one's property by will is one conferred by law. "The extent of the right, and the conditions under which it may be exercised, are and can be only such as the law prescribes. An expression of will failing to comply with the prescribed conditions is a mere nullity." Stone's Appeal,74 Conn. 301, 302, 50 A. 734. "Our statute of wills is not only directory but prohibitory. . . . While extrinsic evidence may be admitted to identify the devisee or legatee named, or the property described in a will, also to make clear the doubtful meaning of language used in a will, it is never admissible, however clearly it may indicate the testator's intention, for the purpose of showing an intention not expressed in the will itself, nor for the purpose of proving a devise or bequest not contained in the will." Bryan v. Bigelow, 77 Conn. 604, 612, 614,60 A. 266.

Our statute of wills is prohibitive and exhaustive. It permits one to dispose of his property after death by will, that is, by bequest or devise, upon complying with the conditions in the statute prescribed, and not otherwise; and one condition prescribed is that each bequest shall be contained in a writing executed with prescribed formalities. In other words, the language used in the writing thus executed must denote the subject and object of the testamentary gift intended. Unless this is done no bequest is made. Parties to a written contract, possessing a plenary power in respect to the contract they may choose to make, may refer to other writings and by such reference make the agreements expressed in such other writings a part of the new contract; the exercise of this power is sometimes called "incorporation by reference." But no person has such plenary power over the testamentary disposition of his property. Under our statute of wills he has no power except that given by the statute. The power, and the only power, given by statute, is that of thus disposing of his property by means of a writing containing in itself language by which the subject and object of the testamentary gift intended is therein expressed, which writing is executed in the manner prescribed. We think this construction of our statute of wills is in accordance with the public policy indicated by our legislation and judicial decisions from the establishment of our government to the present time.

This public policy apparently differs from that recognized by the English courts in the interpretation of their statute of wills. The difference is largely accounted for by the differing conditions which had existed in the respective jurisdictions before the enactment of the statutes. In England, prior to 1837, the regulations on this subject were to be found largely in the unwritten law, modified to some extent by the statute of frauds and perjuries enacted in 1676. That statute, enacted for the prevention of fraudulent practices upheld by perjury, provided that certain leases, agreements, declarations of trusts and contracts for sale formerly provable by parol, should thereafter be proved only by a writing signed by the person to be charged, and that devises of land, formerly provable by a writing signed by the devisor, should thereafter be provable only by such writing attested by three or four witnesses; and that nuncupative wills, formerly provable by one witness, should be proved only by three witnesses. A devise of land, apparently allowable under the ancient common law before the introduction of military tenures, was authorized to a limited extent by 32 Henry VIII., Chap. 1, and was regarded as a conveyance of land; and prior to the enactment of the statute of frauds the devisor, like any other grantor or the parties to a contract, might in his conveyance define its terms by reference to some extrinsic document, as was held in Molineux v. Molineux, 2 Cro. Jac. 144, decided some seventy years before the statute of frauds was passed. After the passage of that Act, the courts construed it as not excluding from evidence either an unattested document referred to in a duly-attested devise, or an unsigned writing referred to in a written agreement duly signed. The effect given to such construction is most strongly stated in Bond v. Seawell, 3 Burr. 1773, where Lord Mansfield says: "A will [devising land] properly attested may, by reference to another instrument, establish particular clauses so ascertained by a clear reference, as strongly as if the clauses so referred to had been repeated in the will verbatim."

This construction was applied to devises which, as conveyances of land, were within the jurisdiction of the common-law courts, and did not specially relate to wills disposing of personal property, which were within the jurisdiction of the ecclesiastical courts, and the proof of which (except nuncupative wills) was not affected by the statute of frauds. In 1837 the statute of wills repealed the Acts of Henry VIII authorizing devises of land, and the sections of the statute of frauds relating to the proof of devises of lands and of nuncupative wills, and enacted that it should be lawful for every person to dispose of by his will all real and personal estate to which he should be entitled at the time of his death, provided no will should be valid which was made by a person under twenty-one years of age, nor should any will be valid unless it was in writing and executed in the manner prescribed. In cases arising under this Act the English courts have apparently treated it as one in derogation of the common law, rather than as an Act giving the power of testamentary disposition of property and defining the limits of the power thus given; and have held that the decisions construing their statute of frauds as not excluding from evidence unattested agreements, deeds and devises of land which are referred to in a duly-attested writing, must control the interpretation of their statute of wills, so that any writing, however informal, in which a disposition of property after death may be indicated, becomes a valid bequest by mere reference to it in a of the statute of wills were considered by the judicial committee of the privy council in Allen v. Maddock, 11 Moore P. C. 427, 452 et seq. The court puts the question thus: "Supposing the evidence [the document referred to] to be admissible as the case would have stood under the statute of frauds, has the wills act of 1837 altered the general law upon the subject?" — and argues that there are no words in the Act by which any such intention is declared; that the statute of frauds enacts that all devises of land shall be in writing, and executed in a certain way, or else shall be void; that the wills act provides that no will by which any property, real or personal, shall be devised or bequeathed, shall be valid unless in writing, and executed in a different way; that the ceremonies necessary to authenticate the instrument are altered, but no alteration is here made in the effect to be given to words used in it; — and so concludes that a paper which would have been incorporated in a devise executed according to the statute of frauds must now be incorporated in a will executed according to the new Act.

Allen v. Maddock is a leading case of the highest authority, generally cited in support of the English doctrine of incorporation by reference, and the reasoning upon which the action of the court in that case is based may well be taken as indicating the public policy which had then developed from past conditions. This policy treated the power of controlling the disposition of one's property after death by will, like the power of disposition during life by contract, as a common-law right, and so treated the statute of wills as neither giving nor restraining that power, but as a new statute of frauds, directed only to the manner of proving its exercise for the prevention of perjury.

The very different conditions which have prevailed in this State have resulted in a different public policy. Here, the regulations on this subject were from the start to be found in the statute rather than in the unwritten law. The jurisdiction of Connecticut was established at the adoption of the fundamental orders of January 14th, 1638-9. The following October laws were passed which provided for the settling of lands, public records, and the disposition of the estates of deceased persons. Any person possessed of estate was authorized to make a will in writing, or by word of mouth. The townsmen of each town were required to take an inventory of the estate of one dying testate, and to see that such inventory and will were exhibited in court and there registered. The townsmen were required to take an inventory of the estate of one dying intestate, and the court to grant administration to the next of kin, and to divide the estate to wife, children or kindred, as in equity it shall see meet; and if no kindred be found, to administer for the public good of the Commonwealth. Provision is made not only for the public record of all wills, inventories and administrations, but of all sales and mortgages of lands, which are not valid until recorded. 1 Col. Rec. 37, 38. A code of laws was adopted in 1650 which contained the foregoing provisions, and further provided that all persons of the age of twenty-one years and of sound mind should have power to make their wills and testaments. 1 Col. Rec. 510. In 1702 it was further provided that all persons of sound mind, of the age of seventeen years, should have power to dispose of their personal estate by will or testament. Rev. 1702, p. 1. The earliest records show wills admitted to probate which were signed by the testator but not witnessed, as well as some witnessed by two or three witnesses, and some declared by the testator before witnesses but not signed by him. 1 Col. Rec. 482-506. The privilege of making wills by word of mouth, or nuncupative wills, given by the first statute of wills, was occasionally used until 1750 and possibly until forbidden by the Act of 1821, but seems to have fallen into disuse prior to that date. Stone's Appeal, 74 Conn. 301,303, 50 A. 734. In 1719 our statute of wills was modified by "An Act concerning Witnesses to Wills," by which it was provided that no wills or testaments "wherein there shall be any devise or devises of real estate, shall be held good and allowed for any such devise or devises, if they are not witnessed by three witnesses, all of them signing in the presence of the testator." 6 Col. Rec. 142. Prior to 1821 our statute of wills was contained in three Acts entitled, respectively, "An Act relating to the Age, Ability and Capacity of Persons," "An Act concerning Witnesses to Wills," and "An Act for the Settlement of Testate and Intestate Estates." In 1821 the provisions concerning wills, with some new provisions, were included in one Act entitled "An Act for the settlement of Estates, testate, intestate, and insolvent." Rev. 1821, p. 199. Since that time the Act thus entitled has contained our "Wills Act," not merely directory, but "prohibitory and exhaustive." In 1848 an Act in alteration of this Act was enacted, as follows: "That all wills shall be in writing, subscribed by the testator, and attested by three witnesses all of them subscribing in his presence; and no will or codicil shall be valid to pass any estate, real or personal, unless it shall be so executed." Public Acts of 1848, p. 36, Chap. 41. This alteration was incorporated in the "Wills Act" appearing in the Revision of 1849, and, with subsequent alterations, in each succeeding Revision. General Statutes, §§ 292 to 414.

In this State the construction of our statute of wills was never seriously entangled with that of our statute of frauds and perjuries. The statute of wills long preceded that of frauds. No Act eo nomine for the prevention of frauds and perjuries was enacted until 1771, when an Act was passed corresponding with the fourth section of the English statute of 29 Car. II. (13 Col. Rec. 422); and in the Revision of 1821 this Act, together with a section corresponding with section seventeen of the English Act, was adopted as our statute of frauds and perjuries. Rev. 1821, p. 246. We have uniformly treated our statute of 1719 as a limitation of the privilege, first recognized by statute in 1639, of controlling the disposition of property after death by will, and as excluding from that privilege the power of making a devise of land except by a devise stated in a writing which is executed in the manner prescribed. We have treated "devise" as meaning the gift of some land to some person denoted by the language used in the writing which purports to make the devise, and have never sanctioned any legal fiction by which a gift of land in a writing not attested can be made operative as a legal devise by reference to it in a duly-attested will which does not contain in itself any gift of any land to any person.

Reading our statute of wills now in force in the light of the conditions which have here prevailed, of its history, of the trend of our judicial decisions and of our public policy thus indicated, we think the meaning and legal effect of that statute is this: The estate of a person upon his death comes into the custody of the law and is disposed of in pursuance of statutes framed in accordance with existing public policy. That public policy determines the general rule for the disposition of each estate by distribution to the next of kin of the deceased, and allows to every person the privilege of controlling by will the disposition of his estate in a different manner in accord with his individual fancies. Unless the intention to avail himself of this privilege is expressed in the manner required by law, the estate must be disposed of in accordance with that general rule determined by public policy. The statute allows to every person this privilege of individual control only upon certain conditions, and no power of individual control is given to any one who does not come within and strictly comply with these conditions. The conditions are: The person must be of the age of eighteen years and of sound mind. He must state the disposition, that is, the devises or bequests he desires to make, in a writing signed by him which denotes by the language therein used the bequests or devises therein contained and made. The writing thus signed must be attested by three witnesses, each of them subscribing in the presence of the testator. The statute is exhaustive, in that it contains within itself the law which permits a disposition of property by will upon compliance with prescribed conditions. It is prohibitory, in that it forbids the disposition by devise or bequest of any property, real or personal, by any person who does not come within and strictly comply with these conditions. It therefore forbids the passing of any property by force of a writing, although signed and attested in the manner prescribed for the execution of a will, which does not contain in itself any bequest of any property to any person and uses no language which can denote any such bequest, notwithstanding it may refer to some unsigned or unattested document which may contain language that would constitute a bequest if it had been used in the attested writing.

It is obvious that the public policy which must determine the construction of our statute of wills differs from that apparently recognized by the English courts in the cases decided under their statute of wills since its passage in 1837, especially if these cases can be regarded as going so far as to hold that a writing signed and attested as a will, which contains only a reference for the discovery of the testator's wishes to unattested documents which are not former wills defectively executed, is competent to change such extrinsic documents into a validly-executed will. In so far as the modern "English doctrine of incorporation by reference" may go to this extent, it has never been adopted in this State, is inconsistent with our public policy, and contrary to our statute of wills. While a bequest which is not contained in a document duly executed as a will cannot be proved by parol, or by extrinsic unattested documents (which for the purpose of such proof are parol evidence), whether referred to in the duly executed paper or not, yet when a bequest is contained in a will denoting the person or persons by name, office or class, to whom the bequest is made and the property or portion of property bequeathed, parol evidence and extrinsic documents referred to in the will may be admitted for the purpose of identifying such persons or property. The court will give effect to the actual intention of the testator thus expressed in the will, using for that purpose all the aids which the law of evidence permits, and oftentimes with a greater latitude than might be deemed allowable in dealing with other writings. The line which separates a bequest which has no legal existence, because its essentials are only denoted in an extrinsic document referred to in the will, and a bequest expressed in the will itself, may sometimes be one difficult to draw, and in some decisions in other jurisdictions an extrinsic document, admissible as identifying the persons or property intended by a bequest actually denoted by the language of the will, has been admitted on the general ground that its admission came within the doctrine of incorporation by reference. Again, codicils have always been treated as being in law (as in their first use they were in fact) writings attached to a will and constituting with it one document, and so, when the will and codicil are separate documents, the codicil referring to, confirming and ratifying the will, may be said to incorporate a separate document by reference; and this law of wills has in some decisions been so extended that a codicil to a will defectively executed is deemed in law as attached to that will, and the legal execution of the whole document as involved in the legal execution of the codicil. It has been argued that such extension of the law governing the legal relation of a codicil to a duly-executed will, whether sound or not, necessarily involves a further extension by which any deed, letter, or writing of any kind, is deemed to be a defectively-executed will, and a subsequent duly-executed will to be a codicil to that writing. We refer to these considerations, and the distinctions they suggest, for the purpose of indicating the sources from which the English doctrine of incorporation by reference has arisen, and of pointing out that the English courts (assuming that their decisions really go to the extreme indicated by the reasoning of the court in Allen v. Maddock, 11 Moore P. C. 427) have not treated their statute of wills as exhaustive, but as leaving the former unwritten law untouched in important particulars, and have apparently recognized in the interpretation of that statute a local public policy different from that which prevails in other jurisdictions which have adopted a statute of wills "prohibitory and exhaustive." In some American cases the broad statement of the "doctrine of incorporation by reference," to be found in the English cases, has been sanctioned, but without direct consideration of the effect of the local statute of wills.

In Newton v. Seaman's Friend Society, 130 Mass. 91, an extreme statement of the doctrine is sanctioned, largely upon the authority of Allen v. Maddock. The courts in the greater number of our sister States have not had occasion to consider the question. In New York, in a case elaborately argued, the Court of Appeals recognizes a public policy similar to that we have indicated as controlling the interpretation of their law, and holds that an extrinsic memorandum referred to in a will, which operates not to identify the subject of a bequest which is made in the will, but to denote a bequest which is not made in the will, cannot by such reference be made a part of the will, and says: "It is unquestionably the law of this State that an unattested paper which is of a testamentary nature cannot be taken as a part of the will, even though referred to by that instrument." Booth v. Baptist Church, 126 N.Y. 215,247, 248, 28 N.E. 238; Langdon v. Astor's Exrs., 16 N.Y. 9 26; Williams v. Freeman, 83 id. 561, 567; Matter ofO'Neil's Will, 91 id. 516, 523.

The precise point now decided as to the effect of our statute of wills may be stated thus: The law which admits parol proof, including documentary evidence, for the purpose of identifying the object or subject of a bequest actually made and denoted in a will, is not altered by the statute; some documents referred to in a will and properly admitted for this purpose do practically become a part of the will and may be spoken of as incorporated by reference. The law of wills which treats a codicil as attached to the validly-executed will it modifies and ratifies, and as constituting with it one document, is not altered by the statute. (The soundness of an extension of this law so as to cover wills defectively executed need not now be discussed.) But the statute does not confer upon any one the power of disposing of his property after death by will, unless by a writing containing in itself the bequest intended to be made, denoted by language therein used, signed and attested with the prescribed public formalities; and any rule of unwritten law allowing such a disposition by will, if any such rule existed prior to the enactment of the statute, is abrogated by force of that enactment.

The State policy which calls for this interpretation of our statute of wills deems it wise to allow some power of disposition of property after death by will; but, recognizing the obvious liability of such a power to abuse in its exercise, and the evil of the endless litigation, defeating the very object of granting the power, invited by the want of certainty and publicity in the Act signifying its exercise, also deems it wise to allow the power only to persons eighteen years of age having the mental capacity to make a disposition of their property at the time the disposition is made; to allow the power only to one who states the bequests made in the writing, which must be publicly proved, registered and preserved as a public record. It treats the general benefit secured by such limitation as outweighing the occasional possible misfortune that may be caused through neglect to comply with the arbitrary conditions imposed as necessary to the enforcement of the limitation.

The reasons we have indicated for the adoption of this policy were suggested in Phelps v. Robbins, 40 Conn. 250,271, and in that case the opinion now expressed as to the meaning of our statute of wills was plainly indicated.

The public policy now generally recognized by American courts, State and Federal, treats the power of giving force after death to one's personal fancies, prejudices, likes and dislikes, by means of a paper inoperative for any purpose and subject to his sole control during life, as a privilege granted by the State, and existing only to the extent implied in the law which grants the privilege. The public policy indicated by the decisions of the English courts in construing their statute of wills, treats this power ofpost mortem control as in the nature of a natural right, the exercise of which should not be restricted unless by the clear and explicit words of a statute. The meaning and effect of the "doctrine of incorporation by reference," as applied to a will, depends largely upon a choice between these two policies. We think the American is on the whole the sounder policy, and should control in the interpretation of a State statute of wills whenever the question arises whether that statute grants the power of making wills by "reference."

In the case at bar the writing admitted to probate as the will of Roxey Foss contains no bequest. There is no language used from which the gift of any property to any person can be gathered and affirmed. There is nothing but a bare direction that after her death her property shall be disposed of in accordance with a certain deed. If her wishes expressed only in the deed may thus be made effective as her will, her wishes expressed only in fifty deeds, letters and memoranda must be given the same effect. It may well be that the testatrix in using this language actually intended to make various bequests and devises. It may well be that one denoting certain bequests in an unsigned writing has an actual intention thereby to validly dispose of his property. Such intentions cannot be proved; they have no legal significance; the law does not give effect to intentions to do what the law forbids. The only intention that can be gathered from the language of Roxey Foss is an intent to dispose of her property in a manner forbidden by the statute of wills. Her estate is therefore intestate estate.

The Superior Court is advised to annul the decree of the Court of Probate appealed from, and to order a distribution of the estate in the hands of the administrator as intestate estate.

No costs will be taxed in this court.

In this opinion the other judges concurred.