In Re Yowell's Estate , 75 Utah 312 ( 1930 )

I dissent. The photograph, Exhibit A, is the purported olographic will. The photographs, Exhibits B and C, are the purported codicils.

I concur in the view that there is sufficient evidence to support the findings of the trial court that the writings contained in the documents were in the handwriting of the deceased, and that hence such findings are binding on us notwithstanding they may be against the preponderance or greater weight of the evidence. I also concur in the holding that the so-called codicils, for the reasons stated in the prevailing opinion are not codicils.

What divides us is the legal effect to be given Exhibit A, the purported olographic will, because of matters therein contained not in the handwriting of the deceased.

Our statute provides that "an olographic will is one that is entirely written, dated and signed by the hand of the testator himself." The instrument claimed to be the will admittedly is not wholly in the handwriting of the deceased. The trial court regarded all words, figures, and language of the will, whether written by the testator or not, above the words, "I will and bequeath to Mrs. Evelyn C. Miller," as surplusage and unnecessary to a completed will, and admitted to probate only that portion of the purported will, Exhibit A, beginning with the words, "I will and bequeath to Mrs. Evelyn C. Miller," and ending with and including the signature and address of the testator. By doing that, the court gave effect to an instrument as found by the court to be wholly in the handwriting of the testator, and admitted to probate only such portion of the will as so prepared by him. The point is as to whether the court was justified in doing that, or whether in doing so it did not make a will for the testator. In Re Wolcott's Estate, 54 Utah 165, 180 P. 169, 170, 4 A.L.R. 727, this court held the statute mandatory, "and, unless strictly complied with, the instrument, as a will, is void." The court there approvingly quoted from In re Billings' Estate,64 Cal. 427, 1 P. 701, that the statute "requires that a paper, to constitute an olographic will, must be entirely written, dated, and signed by the hand of the testator. It must be entirely written, it must be entirely dated, and it must be entirely signed by him. If it be partly written by him and partly written by another, or printed; if it be partly dated or signed by him and partly by another — it is not a compliance with the statute."

Considering the will as prepared by the testator, it is seen that the figures "19" in the first date of the will, "November 15, 1924," are in print. They are the printed figures of the century date of the billhead used by the testator when he was in business. Added to these and as used and adopted by the testator, are the figures "24" in writing as the year date, thus making the century and year date "1924" partly in print and partly in writing. Were that the only date of the will, such under the authorities would render the will invalid as being not in compliance with the statute requiring the date of the will to be entirely in the handwriting of the testator. In re Noyes'Estate, 40 Mont. 190, 105 P. 1017, 26 L.R.A. (N.S.) 1145, 20 Ann. Cas. 366; In re Francis' Estate, 191 Cal. 600, 217 P. 746.

Since, however, a complete date, "November 15, 1924," wholly in the handwriting of the deceased as found by the court, appears in other portions of the will, the respondent contends that such and not the first date may be regarded as the date of the purported will, and hence, in such particular, as being in compliance with the statute. Assuming the contention tenable, yet that does not relieve the case from a more difficult question.

The printed words on the billhead on which the purported will was written, the words, "J.W. Yowell, Terms, cash, Interest charged on all accounts past due, claims on account of this invoice must be made within five days after statement is rendered," and the printed words "Date," "Description," "Charges," "Credits," "Balance," may well be held not to impair the will, were it otherwise in compliance with the statute, for it is apparent that such printed matter in no way related to, nor was used or adopted by the testator in connection with, the will, or that any of such printed matter was an inducing cause or motive in making the will, or had anything to do with it. But the printed stanza pasted on the instrument and in connection with the writing of the testator, "My tribute to Mrs. Evelyn C. Miller," the sole legatee of the will, stands on a different basis. It is apparent that the stanza was no part of the billhead. That is clear. It is just as apparent that it was placed on the billhead by the testator, if it was he who wrote the will, when he prepared it, and that it was put there as a tribute to Mrs. Miller, the sole beneficiary and only legatee of the will. The testator himself so declares in his own handwriting and as a part of the instrument prepared by him as his will. There can be no doubt as to that. There was no other purpose of pasting it on the instrument. It was put there by him as an expression of gratitude toward the legatee, or to show the esteem in which she was held by him, or as a motive in making a bequest to her; and as such it had the same force and effect as though expressions or motives of such character had been written or stated in what the respondent terms the body of the will. It thus cannot be said that the printed stanza in connection with the writing of the testator, "My tribute to Mrs. Evelyn C. Miller," the sole legatee of the will, had no relation to the will and was not a part of it. To the contrary, it had a direct relation thereto, and is a part of the instrument prepared by the testator as his will. When such is made to appear, the effect of it is the same as though the testator had used or adopted any other printed matter or writing of another as a part and parcel of the will. Under such circumstances, the cases cited by the respondent, In re Oldham'sEstate, 203 Cal. 618, 265 P. 183, and In re De Caccia's Estate (Cal. Sup.) 273 P. 553, 61 A.L.R. 393, and other cases to the same effect, are not applicable. In each of the cited cases it was made to appear that the printed words on the stationery or other document or paper on which the will was written were "not expressly, by direct reference, or impliedly, by reference or otherwise, made a part of the written instrument set forth on the sheets of paper upon which they appear," and hence were not regarded by the testator as a part or parcel of his will, nor as having been used or adopted by him as a part of it. The situation here is different. There can be no doubt that the testator did regard the printed stanza as a part and parcel of the instrument prepared by him as his will. It was put there by him for such and for no other apparent purpose.

The trial court evidently regarded such printed matter as being immaterial and unnecessary to the will and that a complete will was written by the testator without it. But that is not the point. If the matter was in fact used and adopted by the testator as a part and parcel of the will, the court was not permitted to strike or disregard what it may have thought rendered the will invalid, or otherwise shear and trim it, until a valid will was made for the testator. Reasons or motives which a testator may declare in his will in making it, or in making a bequest to one or more legatees, while not necessary or essential to a will, nevertheless are not for such reasons irrelevant or immaterial and to be rejected or disregarded. Sometimes they may be quite relevant and material. The stated reason or motive here was relevant as showing what prompted or induced the testator to make so generous and a rather unusual bequest to one not the natural object of his bounty.

The trial court not only struck and disregarded the stanza characterized by the testator as his tribute to Mrs. Miller, but also struck and disregarded the writing found to be in his own hand, in red ink on the top of the right-hand corner of the document prepared as his will, "Please Mrs. Miller put 10,000 or 9,000 of this to draw int. in Ogden State Bank for 5 yr." If the statement, "put 10,000 or 9,000 of this," etc., does not refer to the savings account in the bank and referred to in what is called the body of the will, it is difficult to see to what else such language could refer. If it does refer to the bequest, as I think it does, then it follows that the writing or the statement must have been regarded by the testator as a part of the will, and as explaining or directing the bequest, or a portion thereof as therein made. I thus do not see what license the trial court had to treat such language or writing, though in the hand of the testator, as not a part of the will, or as having been written by him without reference to the will. Still more unjustifiable was the trial court in disregarding such language, if it may have thought it to be in conflict with the words, "in fee simple," also written in red ink in what is called the body of the will. In other words, the court was not justified in striking a part of the language of the will so as to avoid a conflict with other language of it, and thereby make a will free from conflicting provisions. I cannot justify that kind of a shearing and a trimming. And just as unjustifiable was the court in regarding as immaterial and not as a part of the will as prepared by the testator, the printed stanza pasted by him on the instrument as his will, and characterized by him in his own handwriting as his tribute to Mrs. Miller, and found side by side with his writing in red ink, "put 10,000 or 9,000 of this" in the Ogden State Bank. To say that neither of these related to and had not anything to do with the will and were not so regarded by the testator is to give an unwarranted meaning to language and an unnatural and senseless purpose for which it was employed.

But further as to this. This court In re Walcott's Estate, supra, said:

"The fact that the matter written by deceased in her own hand, standing alone, might constitute a complete testamentary disposition of her property, does not alter the case. The document offered by appellant is not the document prepared by deceased as her will. The document actually prepared by her does not meet the statutory requirements. In either case the instrument cannot be sustained as a will without arbitrarily setting the statute aside and substituting our will for that of the Legislature. This we have no right or power to do, however much we may appreciate the hardship incident to a strict construction in the present case."

So here the will which the trial court admitted to probate was not the document as prepared by the deceased as his will, but was one which was sheared and trimmed by the court so as to make what was thought to be a valid will for him. I see no reason to overrule or modify what with respect to such matter was held by this court in the case of In reWalcott's Estate, and had the trial court in this case followed and applied what was there held, it is apparent the purported will could not properly have been admitted to probate.

Ordinarily in a law case, as this is, in reversing a judgment, we but remand the case for a new trial, unless on the record it is apparent that in no event may the plaintiff prevail. I think that the situation here. I therefore am of the opinion that the judgment should be reversed and vacated, and the case remanded to the district court, with directions to dismiss the petition to probate the alleged will.