In Re Irvine's Estate ( 1943 )

Appeal from order refusing to admit to probate a testamentary writing offered as a holographic will. The writing reads:

"Will of Belle B. Irvine "I, Belle B. Irvine of Butte Montana being of sound mind and[1] memory do hereby made and declear this as my last will and testament.

"After payment of all my just debts and expenses of administration I give, devise and bequeath all the residue of my property of whatever kind and wherever situated to my nephew, Edgar Wild, Subject, however to a trust. I appoint my said nephew Edgar Wild, the executor of this will to serve without bond.

"In witness where of I have hereunto set my hand, this day of May, 1938,

Belle B. Irvine".

The trial court, after hearing had, made an order wherein it found and ordered:

"The court being * * * fully advised in the premises finds that said alleged will is entirely written and signed by the hand of the said Belle B. Irvine but does not bear the day of the month of the execution thereof, such part being omitted from the date of the execution thereof.

"It is therefore by the court ordered that said instrument, propounded as the last will and testament of Belle B. Irvine, deceased, be, and the same is hereby rejected and denied probate."

The making of the above order constitutes appellant's only specification of error.

Admittedly the writing was entirely written and signed by the hand of the deceased. The one reason assigned by the trial court for rejecting the writing as decedent's last will is that it "does not bear the day of the month of the execution thereof."

The question for decision is: Do the statutes of Montana require that a holographic document making testamentary disposition of property must give, in addition to the year and month of execution, the day of the month, under penalty of being declared null, void and of no effect as a holographic will?

In the statutes of our state referring to holographic wills we find no mention whatever of incorporation in the instrument of the day of the month of the execution thereof.

Section 6981, Revised Codes, defines a holographic will thus: "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."

"Holograph" is defined by Webster's New International Dictionary as, "A document, as a letter, deed, or will, wholly in the handwriting of the person from whom it proceeds and whose act it purports to be." The word is a combination of the Greek wordholos, meaning, all, complete, whole with the Greek wordgraphos or graphein, signifying something written, a writing. Hence the definition of a holographic will set forth by the legislature in section 6981, Revised Codes, conforms to the approved usage of the language and signifies a will wholly written by the testator. The writing must not be contaminated by any stranger's touch. The will must be wholly the handiwork of the testator. The entire will, all the will, must be wholly in the handwriting of the testator himself.

The statutory definition (sec. 6981, supra) contemplates that a holographic will be entirely written by the hand of the testator himself including: (1) The principal part of the writing, the part thereof disposing of that which the testator would have done after his death, i.e., the will proper; (2) the part of the writing wherein the testator gives or indicates the time when the will was made, i.e., the datum clause or the dating part; and, (3) that part of the writing wherein the testator signs or writes his name to authenticate the writing as the testator's will, i.e., the part where signed, the signature.

Thus the legislative definition (sec. 6981) contemplates that a holographic will may have three parts, namely: (1) The will proper, (2) the date, and (3) the signature, and that each of such parts be written by the hand of the testator and no one else.

While the legislature has not specifically defined the word[2] "dated" used by it in section 6981, yet it has declared the rules that are to be employed in interpreting statutes and "to aid in their just application" (sec. 8738) "and these rules and restrictions are obligatory on courts." (In re Noyes'Estate, 40 Mont. 190, 199, 105 P. 1017, 1020.)

"Interpretation must be reasonable." (Sec. 8771, Rev. Codes.) "An interpretation which gives effect is preferred to one which makes void." (Sec. 8770.) "The law respects form less than substance." (Sec. 8757.) "The law neither does nor requires idle acts." (Sec. 8761.) "The law disregards trifles." (Sec. 8762.)

The legislature has also enacted certain statutory rules for interpreting wills among which are the following: "A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible." (Sec. 7016.) "Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will." (Sec. 7022.) "The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained." (Sec. 7023.) "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative" (Sec. 7024.) "Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy." (Sec. 7025.) "A condition precedent in a will is to be deemed performed when the testators' intention has been substantially, though not literally, complied with." (Sec. 7047.)

"Date" is derived from the Latin word datum meaning "given". The English word "date" and its Latin derivative datum have a historical background. In England prior to 1731 instruments of writing, particularly legal documents, such as deeds and wills, were in Latin and that part thereof giving the place or the time or giving both the time and place when and where the instrument was made became known as the datum clause because the Latin form ran datum etc. Thus Datum apud London means, Given at London. The plural of datum is data. The Magna Charta, written in Latin, concludes with the datum clause, or data, or date, viz.: "Data per manum nostram, inPrato quod vocatur Runimede," etc. Thus has the Latin datum clause, being the English "date," acquired a peculiarly appropriate meaning in law and the legislature has commanded that such word "be construed according to such peculiar and appropriate meaning." (Sec. 15, Rev. Codes.)

Anderson's Dictionary of Law defines the word "date" thus: "The primary signification is the time ``given' or specified, — in some way ascertained and fixed. The time when an instrument was made, acknowledged, delivered or recorded; the clause or memorandum which specifies that fact; and the time from which its operation is to be reckoned." (See, also, "Date" in Abbott's Law Dictionary, page 338.)

The Century Dictionary and Cyclopedia defines the noun "date" thus: "That part of a writing or inscription which purports to specify the time when, and usually the place where, it was executed. A full date includes the place, day, month and year; but in some cases the date may consist of only one or two of these particulars, as the year on a coin. * * *."

The Supreme Court of the United States, speaking through Mr. Justice Sutherland, said: "The word ``date' is used frequently to designate the actual time when an event takes place, but, as applied to written instruments, its primary signification is the time specified therein. Indeed this is the meaning which its derivation (datus — given) most naturally suggests. In Bement v. Trenton Locomotive Mach. Mfg. Co., 32 N.J.L. 513, 515,516, it is said: ``The primary signification of the word "date" is not time in the abstract nor time taken absolutely, but, as its derivation plainly indicates, time "given" or specified, time in some way ascertained and fixed; this is the sense in which the word is commonly used. When we speak of the date of a deed, we do not mean the time it was actually executed, but the time of its execution, as given or stated in the deed itself. The date of an item, or of a charge in a book account, is not necessarily the time when the article charged was, in fact, furnished, but simply the time given or set down in the account, in connection with such charge.'" (Mutual Life Ins. Co. of NewYork v. Hurni Packing Co., 263 U.S. 167, 174, 44 S.Ct. 90, 91,68 L.Ed. 235, 31 A.L.R. 102.)

In Shaughnessey v. Lewis, 130 Mass. 355, the court said:

"It would be a very harsh as well as unnatural construction of the statute to suppose that the Legislature meant to make void as against the world an instrument which, in one of the various modes in which mistakes in the Calendar occur, happens to be misdated. It is common knowledge that at the commencement of the year instruments are frequently antedated a year. It often occurs that such instrument carries with it conclusive evidence of a mistake in the date. Such evidence does not, however, change the words of the date.

"We need not resort to the etymology of the word ``date' to arrive at this conclusion, although the technical signification of datum would import the execution of the instrument, rather than figures of month or year. In Folsom v. Clemence,111 Mass. 273, the law is stated with exact accuracy. In that case, there was no date of a mortgage except it was dated 1870 without month or day of the month, but on its back was written, ``March 24, 1870;' in reference to which it is said by the court that ``the evidence tended to show that to have been the time of its delivery, which is the true date.'"

Funk Wagnalls New Standard Dictionary (1942) defines the verb "date" thus: "To mark with a date, as a letter or deed. To assign a date to; as, Gibbon dates that event too early. To use some event or period as a basis in noting time; reckon. To have existed from a given date: with from; as Protestantism dates from 1517. The triumphant establishment of the Copernican doctrine dates from the invention of the telescope. Draper. To bear a date; as, the bill dates from London."

Generally speaking, a date is not necessary to the validity of[3] an instrument unless it is required by statute. "And the date of a deed is not of the substance of a deed." (Goddard v.Denton, 2 Coke (Eng.) 4b; Jackson ex dem. Hardenberg v.Schoonmaker, 2 Johns., N.Y., 230.) "But the ancient deeds had no dates, only of the month and the year, to signify that they were not made in haste, or in the space of a day; but upon longer and more mature deliberation. (Blount's Law Dict.)" (Jacobs Law Dict. title, "Date.")

In section 6980, Revised Codes of Montana, the legislature has set forth the requirements for the execution of all wills other than holographic and nuncupative wills, but nowhere has the legislature required that such wills show either the place where they are made or the year or the month or the day of the month when same are executed. Thus the datum clause or the date clause is no part of such wills as are executed pursuant to section 6980, Revised Codes.

Clearly the legislature has the authority to require, by legislative enactment, that to be valid, a holographic will must specifically set forth the day of the month of its execution, but as yet, the legislature has not exercised such authority. It has not enacted any such specific requirement. In the absence of such legislative enactment the courts most certainly do not have the authority to invade the field reserved for the legislative department and to legislate such specific requirement into a most general statute which never did contain and which was never intended to contain any such specification. (Constitutional Law, 11 Am. Jur. sec. 198, pp. 900, 901.) "The powers of the government of this state are divided into three distinct departments: The legislative, executive, and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted." (Constitution of Montana, Art. IV.)

Nowhere has the Constitution "expressly directed or permitted" this court to restrict, amend or in any wise alter the simple and clear definition of a holographic will given by the legislature in section 6981, Revised Codes. The power to define is the power to legislate. The power to legislate is vested in the legislative assembly (Montana Constitution, Art. V, sec. 1) and not in the courts (Id. Art. IV). The legislature has the authority by proper enactment to prescribe that a holographic writing which "does not bear the day of the month of the execution thereof" shall be invalid and denied probate, but in the absence of such enactment by the legislature the courts have no authority to amend and restrict the plain and simple language of section 6981, Revised Codes, by reading such last quoted words into the statute. Since 1877 has this general statute stood as the law of this state without reading into it any "day of the month" requirement, and if the statute is to be amended by inserting therein such specific requirement, such amendment should come in the regular manner through the legislative assembly.

The word "date" when spoken may sound somewhat similar to the word "day" but the words are certainly not synonymous nor do they have a common source or derivation, and the statutory definition setting forth that such date as is given a holographic will is to be written by the hand of the testator himself does not warrant a construction by the courts which invalidates and denies probate to a testamentary writing wherein the testatrix has clearly set forth and given by her own hand a date consisting of the year and the month of its execution but wherein she did not give the day nor the hour when she affixed her signature thereto.

The legislature recognized that a holographic will may be most informal so long as the writing is all done by the hand of the testator alone, so long as he signs it in some fashion, and so long as, in his own handwriting, he gives some data, figures or markings indicating the time when it was given or from which its operation is to be reckoned. The legislature expressly provided: "It is subject to no other form." (Sec. 6981, Rev. Codes.)

To be valid, a holographic will need not be full and complete as to form, as to writing, as to signature, nor as to date. It is strictly up to the testator as to whether he shall use few or many words; as to whether he shall follow a legal form or disregard all forms and draft his will in his own language and fashion; as to whether he sign his name in full or by initials or by a nickname, and, finally, as to whether he shall write a full, complete and formal datum clause such as concludes the Constitution of the United States, or whether he shall be more brief and shorten his data or date to a simple memorandum which gives only the year and the month of execution.

In Bailey v. Teackle, 1793, Wythe, Va., 173, the court sustained as a holographic will a writing which bore no signature except, "i Richard Drummond of Accomack county, * * * do make and ordain this my last will and testament" etc., at the beginning and was dated thus: "In testimony whereof i have hereunto set my hand and affixed my seal, this ____ day of April, in the year of our lord 1744." In Webster v. Lowe, 1899, 107 Ky. 293,53 S.W. 1030, 1031, the court admitted, as a holographic will, a writing which bore no date whatever, saying: "To the validity of a will, the law does not require it should assume any particular form, or that any technically appropriate language should be used therein if the intention of the maker is disclosed, and the destination of his property at his death is described." InYount v. Hail (In re Estate of Hail), 1923, 106 Okla. 124,235 P. 916, the court sustained as a holographic will a writing bearing date "November. 1919," thus setting forth no day of the month whatever.

Clearly the validity of a holographic will is not dependent[4] upon its formal character nor upon the fullness and completeness of its every detail. "An absolute precision of execution is not expected in the case of an holographic will." (In re McMahon'sEstate, 174 Cal. 423, 163 P. 669, 670, L.R.A. 1917D, 778.) "The validity of such a will owes its origin to the fact that a successful counterfeit of another's handwriting is exceedingly difficult, and that therefore the requirements that it should be in the testator's handwriting would afford protection against a forgery of this character. * * * It is sufficient if the writing expresses, however informally, a testamentary purpose in language sufficiently clear to be understood, * * * Amounts may be stated in figures as well as words, and customary abbreviations may be used." (28 R.C.L. sec. 116, p. 161.) "Signature by an abbreviation, or by initials, or the word ``Father' if intended as a signature, or ``Mother,' or by a nickname, is sufficient." (1 Page on Wills, 3d Ed., sec. 389, p. 704.) Holographic wills bearing the following signatures have been held to fully meet the statutory requirements, viz.: "from a loving Mother" (In reHenderson's Estate, 196 Cal. 623, 238 P. 938); signed, "your brother Ed" (Barnes v. Horne, Tex. Civ. App., 233 S.W. 859), and signed only with the initials "E.M.P." (Pilcher v.Pilcher, 117 Va. 356, 84 S.E. 667.)

"It is a very common thing for men to commence a letter or other document on one day, and to finish it on the next or some subsequent day; and in such case the date, whether written at the beginning, as is usually the case, or at the end, as is sometimes done, is, according to the common and received usage of language, the proper date of the writing; and this is equally true of legal documents, though these do not take effect until completed and delivered." (In re Clisby's Estate, 145 Cal. 407, 78 P. 964, 104 Am. St. Rep. 58.)

The courts have likewise held that a wrong date or even an impossible date given in a holographic will does not invalidate it as where the year "1880" was used instead of "1890" (Barney v. Hayes, 11 Mont. 99, 27 P. 384; Id., 11 Mont. 571, 29 P. 282, 28 Am. St. Rep. 495); and the figures "1859" were used instead of "1889." (In re Fay's Estate, 145 Cal. 82,78 P. 340, 104 Am. St. Rep. 17.) In Doran v. Mullen, 78 Ill. 342, the appellate court sustained a will that bore date after the death of the testator, and in In re Wilkinson's Estate,113 Cal.App. 645, 298 P. 1037, the will was held sufficient where the words, "December Fourth, nine hundred and twenty eight" were used instead of "December 4th, 1928," being an error of an even 1,000 years.

Under the law Belle Irvine was privileged to make her will on any of the 365 days of the year. On none of such days did the law prohibit her from making a testamentary disposition of her property. The law permitted her to execute her will on "this last day of May, 1938," "this May day, 1938," "this Mother's Day, 1938," "this Memorial Day, 1938" or any other of the various days that went to make up the month of May, 1938. It is not even necessary that a holographic will be written at one time or even on one day. (In re Clisby's Estate, supra.)

This court in In re Noyes' Estate, supra, quoted as follows from In re Estate of Fay, 145 Cal. 82, 78 P. 340, 104 Am. St. Rep. 17: "The date is not the material thing, although made necessary by the statute. It is a means of identification, and aids in determining the authenticity of the will; but the main and essential thing is that the will be wholly written and signed by the hand of the testator."

When courts recognize, as they must, that "the date is not the material thing", why should they quibble over the effect of omitting the day of the month from a will, wherein the testatrix has written, by her own hand, the year and the month of the execution? The statute does not require that the date given in a holographic will be a formal or a full or a complete date giving the exact place where and the exact time to the day and hour when the will was executed. "Such holographic will need not be in any particular form. * * * If the decedent's intention is clear, that intent must not be ignored because the language is not technical." (Barney v. Hayes, 11 Mont. 571, 29 P. 282,284, 28 Am. St. Rep. 495.)

The precise question here presented has not heretofore been passed upon by this court. In volume 1, Page on Wills, 3d Ed., p. 702, it is recognized that courts from other jurisdictions have held both for and against validity, saying: "If the date gives the year and the month, but without the day of the month, some courts have held that it is insufficient; while others have held that it is sufficient."

We are not unmindful of the numerous court decisions wherein the courts have refused to admit holographic writings to probate unless they were first shown to be "letter and figure perfect,"[5] but this court will not blindly follow the construction given a particular statute by the courts of another state, especially when such construction or decision does not appeal to us as founded on right reasoning. (Ancient Order of Hibernians v. Sparrow, 29 Mont. 132, 74 P. 197, 64 L.R.A. 128, 101 Am. St. Rep. 563, 1 Ann. Cas. 144.) Furthermore, we have noted that the very courts which insist on denying probate to all holographic wills which omit to give the day of the month of execution hold that it is wholly immaterial whether the day given be the correct day or not. Such courts seem content with any given day, — right, wrong or even impossible, just so long as some day is set forth. Why this idle, meaningless worship of form, which serves only to defeat the intention of both the legislature and of the maker of the will?

By adopting a technical and strict, rather than a reasonable, interpretation of a general statute which gives but a general definition of a holographic will, some courts have, in effect, by judicial interpretation, read into the statute, after the worddated, the words "including the day, the month and the year of the execution thereof." (In re Estate of Vance, 174 Cal. 122,162 P. 103, L.R.A. 1917C, 479.) That great injustice has resulted from this judge-made law has long been recognized and the courts have made repeated appeals to the legislature to enact legislation which will permit an abandonment of the strict and unjust "letter and figure perfect" rule which the courts and not the legislature brought into being. In 1923, in his concurring opinion, in the case of In re Estate of Francis,191 Cal. 600, 217 P. 746, Mr. Justice Louis Myers, afterwards Chief Justice, said: "I concur solely because I must agree that this case is ruled by the decision in [Re] Estate of Thorn [183 Cal. 512, 192 P. 19], and if a change is to be made inthe rule as there announced it should be by legislativeenactment." In 1936, Presiding Justice Crail, following the rule, but recognizing its unsoundness, said in In re Maguire'sEstate, 14 Cal.App.2d 388, 58 P.2d 209, 210:

"If the matter had not already been decided in California and become a rule of property, we would be inclined to hold otherwise. * * * But this court is not the Supreme Court of the state of California and it is the duty of this court to follow the law as it is interpreted by that court. * * * Grief and disappointment are often caused to those depending upon holographic wills by the law as it now exists. A tragic illustration was the will of June Mathis, Los Angeles superior court, No. 90235. It may be that some time in the future the Legislature will make an additional amendment to the section to the effect that no date is necessary provided the approximate time of the execution of the will is proved and that the testator was competent to make a will during all the time within the limits of said approximation." This court has not as yet adopted the "letter and figure" perfect rule as to the date of holographic wills, hence there is no need for us as yet to appeal to the Legislature to relieve us from the consequences of our own folly in promulgating and adopting a judge-made rule which is harsh, unreasonable and which invaded the field reserved for the legislative department of our government in violation of Article IV of the Constitution.

"Law is supposed to be the perfection of reason, and any rule[6] which either offends against every dictate of common sense, or defeats the very object of the provision to which it is applied, ought not to be adopted." (State ex rel. Hay v.Alderson, 49 Mont. 387, 142 P. 210, 216, Ann. Cas. 1916B, 39.) "When the reason of a rule ceases, so should the rule itself." (Sec. 8739, Rev. Codes.)

In construing statutes and provisions of the Codes and "to aid in their just application" (sec. 8738, Rev. Codes), we are commanded by the legislature of this state to make our interpretation reasonable (sec. 8771, Id.), so as to give effect and not to make void (sec. 8770, Id.)

The territorial legislature of Montana, in 1877, recognized the validity of holographic wills by the enactment into law of what is now sections 6981 and 10031 of the Revised Codes. Four years later (1881), the Supreme Court of California decided the case, In re Estate of Martin, 58 Cal. 530, wherein is adopted the strict rule of construction since followed by the courts of that state. These decisions occurring subsequent to the enactment of our statute are entitled to respectful consideration, but we are not bound by them. (Ancient Order of Hibernians v.Sparrow, supra.)

The law of this state expressly permits a person, without the assistance of an attorney at law, or any one else, to make a valid testamentary disposition of his property. The question is not whether attorneys and courts approve of holographic wills. The law of this state approves and for over sixty-six years it has approved of such wills. Courts therefore have no right to apply a strict and unreasonable construction to such informal writings, and, by seizing upon immaterial technicalities, declare them invalid, thereby defeating not only the will of the deceased person, but also that of the legislature.

The record here shows that Belle B. Irvine endeavored to comply with the law. She endeavored to avail herself of the privilege of section 6981, Revised Codes, and, thereunder, to dispose of her property according to her desires. The writing she made for this purpose is entirely written by her hand. Three times, she wrote her name in the document. She signed it. To give to it a date she wrote: "In witness where of I have hereunto set my hand this day of May, 1938, Belle B. Irvine." What does the law say about these words so written by the deceased in her will? "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative." (Sec. 7024, Rev. Codes.) Thus are the courts commanded by the legislature to give to these words an interpretation that will give some effect to them rather than to so interpret them as to render them inoperative. When there are presented two modes of interpreting a will, the legislature has said "that is to be preferred which will prevent a total intestacy". (Sec. 7025.) As to the meaning of the words "In witness whereof" used by decedent, Ballentine's Law Dictionary gives: "A formal expression commonly used at the beginning of the attestation clause of any signed instrument." The words "I have hereunto set my hand" simply mean that decedent was declaring, publishing and authenticating her writing by setting, in her own hand, her name or signature thereto. By writing the words "this day of May, 1938" in the clause the decedent thereby placed in her writing a datum clause giving the data as to the time when her writing was done. She gave the month and the year of execution. She dated it. Thereby she substantially complied with the statute. (Sec. 6981, Rev. Codes.)

This writing became and was Belle B. Irvine's "just sentence" of her will touching what she would have done after her death. (Barney v. Hayes, 11 Mont. 571, 29 P. 282, 28 Am. St. Rep. 495.) Such solemn writing is entitled to the respect of the courts. It constitutes a valid holographic will and is entitled to be admitted to probate. Thereby is done the will of the legislature and also the will of Belle B. Irvine.

Order reversed.

MR. JUSTICE ERICKSON concurs.