In Re McNair's Estate , 72 S.D. 604 ( 1949 )

ROBERTS and SICKEL, JJ., dissenting. The sole question submitted by the appeal in this proceeding is whether a writing testimentary in character was executed or signed by the author as is required by SDC 56.0209 relating to the form of an olographic will. No other ground of opposition to the probate of said writing is raised or argued here. By stipulation of counsel appearing in the record it is agreed that all of the writing upon the instrument presented as the will of Ella McNair, with the exception of filing and identification marks placed thereon by court officials, is by the hand of said person. The county and circuit courts each decided that such written instrument bore the author's signature and that the same should be admitted to probate. The contestants, plaintiffs at the trial de novo in circuit court, appeal from the judgment of that court overruling the ground of opposition to probate upon which they relied and determining that the writing is legally sufficient to constitute the author's will.

In lieu of an attempt to accurately describe the instrument before us a photographic copy thereof is here set forth.

[EDITORS' NOTE: PHOTOGRAPHIC COPY IS ELECTRONICALLY NON-TRANSFERRABLE.]

[EDITORS' NOTE: PHOTOGRAPHIC COPY IS ELECTRONICALLY NON-TRANSFERRABLE.]

[EDITORS' NOTE: PHOTOGRAPHIC COPY IS ELECTRONICALLY NON-TRANSFERRABLE.]

[EDITORS' NOTE: PHOTOGRAPHIC COPY IS ELECTRONICALLY NON-TRANSFERRABLE.]

It is observed that the same consists of three sheets of ruled tablet paper. The reverse side of sheet No. 3 carries what is written after the word "over" in parentheses appearing on said sheet. The handwriting thereon is all in ink and bears the appearance common to instruments prepared with a pen dipped in ink rather than with a self-feeding or fountain pen, some parts of the writing, as is manifest from the copy, carrying considerably more ink than was employed elsewhere thereon. The uniform coloring of the ink used, the character of the handwriting and the similarity of the pen markings all tend strongly to indicate that the instrument was written at a single sitting. Nothing appearing therefrom suggests otherwise.

Ella McNair died at a Huron hospital March 21, 1946. Her husband, James D. McNair, predeceased her about ten years. She left no children surviving. As appears from the writing she owned considerable property at the time of her death. The record discloses that Cecil Richardson, the person for whom payments from trust income were provided and the individual last named in the writing, was her nephew and resided with her at Wessington for a period of some years prior to his death just two weeks before Mrs. McNair's passing. No other heir or relative is named as a beneficiary in the document in question. This instrument was taken by Mrs. McNair to the hospital. The same was kept in a small satchel and remained in her possession until her death. Thereafter it was removed from the satchel and from an envelope in which it was enclosed. The envelope bears the inscription "Will of Ella McNair". Part of such inscription is underscored. It is agreed also that the inscription on the envelope is in the handwriting of Mrs. McNair.

[1] Over objections interposed by respondents at the trial proceeding the court heard testimony to the effect that the writing above described was by Mrs. McNair not regarded as her will and that she had made declarations before and after going to the hospital in last illness indicating an intention on her part to make dispositions of her property other than as in said writing set forth. Other evidence is to the contrary effect. It is a reasonable inference from the fact of the death of the nephew named in the writing that Mrs. McNair gave some thought to making other disposition of the property she had therein set apart to him. We are not in this proceeding, however, called upon to determine the admissibility of the testimony of witnesses tending to prove that declarations of the author of the writing negatived what otherwise appeared from the face of the writing to be an execution or signing thereof. As first stated above, the only question before us is whether the writing of testamentary character dated August 9, 1944, is, as was decided by the trial court, signed by Mrs. McNair and therefore her will. This court has heretofore applied the rule that the only evidence that will warrant the conclusion that a holographic will is a complete and executed document must be found in and on the instrument itself. In re Brandow's Estate, 59 S.D. 364,240 N.W. 323, 324.

Able briefs of counsel have aided us in deciding, for the first time in this court, whether an instrument of the character as above appearing and described, whereon the name of the author is written by him at a place or places other than at the end thereof, is a signed and completed document. This question has been the subject of much study elsewhere as is to be subsequently noted. It has been frequently treated in the decisions of the courts of California, perhaps much oftener than by the courts of any other jurisdiction. The authorities cited by counsel and others thought to shed light upon the problem have been reviewed.

[2] Our statute, SDC 56.0209, is as follows: "An olographic 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."

Every will, other than a nuncupative will, must be in writing, and every will, other than an olographic will and a nuncupative will, must be subscribed at the end thereof either by the testator or by some person acting at his direction. SDC 56.0210. The manner of executing the different forms of wills required by the laws of this state to be in writing is readily apparent: the one form, an olographic will, need but be signed; the other form, an attested will, "must be subscribed at the end thereof."

Appellants contend that this document should not have been admitted to probate as a will for the reason that no proof was offered by respondents establishing on the part of Mrs. McNair an intention to authenticate the same and for the further reason that the instrument is not sufficiently complete to indicate a signing thereof when she wrote her name thereon. They urge the position that the name of Ella McNair as thereon appearing was but to identify the author and that the document is in the nature of an unfinished memorandum or list.

[3] In a former opinion of this court, In re Brandow's Estate, supra, with reference to the place of a signiture on an olographic will, it is written: "Her name appears at the end of the instrument. * * * It is not material where the name of the testator appears in a will of this character. If it can be gathered from an inspection of the whole instrument that it is intended as a last will and testament, the statute is satisfied." The name of the maker of the Brandow will appearing at the end thereof, appellant's counsel assert that part or all of the two sentences last quoted is dictum and therefore offers no true guide in the case now before us. Should we concede the premise of this assertion, which we decline, we disagree with the conclusion thereof and we affirm the rules of law as declared in that opinion. Cf. 68 C.J., Wills, § 404; 57 Am. Jur., Wills §§ 647 876. Cases examined by us and not cited in the Brandow opinion are referred to and cited in footnotes and annotations following the statements of the rule by Corpus Juris and American Jurisprudence in the respective sections thereof numbered as above.

The early English case of Lemayne v. Stanley, (1681), 3 Lev. 1, holding that an olographic will may be signed at the top, bottom or margin, is the subject of special consideration in a preparation found in 29 Mich. Law Rev. 685. Many of the decisions of the courts of other jurisdictions, antedating the opinion of this court in Brandow's Estate, supra, are therein reviewed, compared and distinguished. Our study of the many cases prior and subsequent to said opinion satisfies us that an attempt to rationalize the recorded views of other courts would likely result in a fruitless endeavor. We assume no such undertaking. Deducible from our reading is that a number of somewhat common factors tended to influence the announced determinations respecting instruments, in the nature of testimentary dispositions, not subscribed at the end thereof. These include the time and place of the writing, the mental capacity or physical condition of the author, the place upon the instrument where the name of the maker is written, the inscriptions preceding or following the written name, the phraseology of the writing, how long it existed and where it was kept, the presence or absence of witnesses' names on the writing and whether or not it purported to be a more or less complete disposition of the author's holdings. Also, and of course of prime importance, are the specific provisions of the statutory law of each jurisdiction prescribing the essential features and form of an olographic will. As observed above, our statute requires not a subscription but a signing thereof.

[4] Much of appellants' argument is directed against a holding that the name of the author written only in the exordium clause as hereinabove shown is a sufficient signing. They reason, and with a number of decisions supporting their views, that the name as there appearing is inserted but to identify the writer of the instrument and not with an evident intent to execute and authenticate the same. Should the features of the document now under consideration restrict us to such a solitary or single appearance of the name "Ella McNair" we would then be forced to a decision either for or against the early English case of Lemayne v. Stanley, supra, as has been the lot of courts of other jurisdictions. Here, however, the name of the author is written also at the top of each of the separate sheets. The hand of the writer departed from the form or context as otherwise and previously appearing in the writing when her name was placed at the top of the third and last sheet. She there wrote: "Will, Ella McNair" or "Will. Ella McNair". Whether a comma or a period is the chosen punctuation in this inscription is not possible of ascertainment by a comparison of the mark found here with like punctuations as elsewhere inserted in the writing. Regardless of the punctuation, we think it noteworthy and signficant of Mrs. McNair's intention to authenticate the instrument as her will when she wrote where she did, in effect if not in fact, "This is my will. Ella McNair". We are satisfied that the inscriptions of her name at the top of the last sheet of this writing and elswhere thereon as above noted was a signing of the same by Mrs. McNair altogether sufficient under SDC 56.0209.

Whether the document in question is sufficiently complete to sustain the view that it was signed as a finished preparation must be determined from the face of the instrument. In the last paragraph of her writing, in addition to the final sentence thereof leaving the home and its contents to Cecil Richardson, Mrs. McNair plainly sought to declare and create a trust of "the following properties and all the rest and remainder thereof". The legal construction to be placed upon this quoted phrase and others appearing in the closing paragraph is not now before us for determination. Taking into account the general appearance of the writing, the language and phraseology employed therein, the evident care and reflections with which it was drawn, the extensive provisions of the same and the particular expressions found in the closing paragraph thereof we are constrained to hold that there was, at least in the mind of Mrs. McNair, a document before her sufficiently complete to induce her to affix her name thereon in token of execution of the same as her will. Nothing appearing from the writing itself suggests to us that Mrs. McNair intended to or should have added thereto, as further evidence of completeness, some expression in the nature of a formal finality. The same bears date nineteen months before her death, a circumstance furthering the view that she long looked upon her writing as a finished task. We think it should not be disregarded and cast aside now.

We perceive no possible benefit to be derived from relating in detail the extraneous evidence introduced for the purpose of defeating what appears from the writing itself to be a completed and executed document. Evidence of that character submitted by the proponents of the will is in sharp conflict with that introduced by contestants and tends strongly to uphold the view that the writing was regarded by Mrs. McNair as a finished production. We conclude that the instrument itself is the best evidence of the author's purposes and intention and that the same is such as to sustain the decision here for review. Appellants have not convinced us that the learned trial court was wrong.

Among the decisions of the courts of other jurisdictions treating the question, and sustaining the views we have stated above, are the following. In re Gardener's Estate, 84 Cal.App.2d 394,190 P.2d 629; In re Kaminski's Etate, 45 Cal.App.2d 779,115 P.2d 21; In re Kinney's Estate, 16 Cal.2d 50, 104 P.2d 782; In re Johnson's Estate, 209 Iowa 757, 229 N.W. 261; In re Norris' Estate, 221 Mich. 430, 191 N.W. 238, 29 A.L.R. 884, with annotation following; In re Cravens' Estate, 177 Minn. 437,225 N.W. 398; Lawson v. Dawson's Estate, 21 Tex. Civ. App. 361,53 S.W. 64.

The decision and judgment appealed from are affirmed.

SMITH, P.J., and RUDOLPH, J., concur.

ROBERTS and SICKEL, JJ., dissent.