Baker's Appeal , 1885 Pa. LEXIS 576 ( 1884 )

Mr. Justice Cbabk

delivered the opinion of the court, January 19th, 1885.

The sixth section of the Act of 8th April, 1833, P. L. 249, provides that “ every will shall be in writing, and, unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him, at the end thereof,” etc. The construction, which had been previously given to the Act of 1705, made this provision necessary; the plain purpose of the legislature, in requiring the signature of the testator to be written at the end of the will, was to assimilate wills, in the mode of their execution, to other instruments for the transmission of title, to furnish a more certain and satisfactory means of authentication, and thus to distinguish what might be mere incomplete memoranda, from that which certainly declared the full and final purposes of the testator respecting his property. That this was, at least, the primary and principal object of the statute of 1833, is abundantly shown, not only in the report of the commissioners, (Parke and J. 874), but in numerous decisions of this court since its passage: Strickler v. Groves, 5 Wharton 385; Hays v. Harden, 6 Barr. 409. It is the animus testandi, therefore, which is manifested by the testator’s signature to a will, and unless signing be prevented by an absolute inability the fact of a completed testamentary disposition cannot otherwise appear.

The will of George Baker is commenced upon the first and is formally concluded upon the third page of a folio of foolscap paper. The fourth page of the paper, however, contains another, and further testamentary provision, and, as the signature to the will is at the end of what is written on the third page, it is urged on the one side, that it is not signed, according to the statutory requirement, at the end thereof; on the other side, it is contended that what is written on the fourth page, is. by clear reference incorporated into the body of the will, and that although the signature is not at the end of the writing, in point of space, yet if the item on the fourth page be drawn hito its appropriate and clearly intended connection, on the third, the signature will then appear at the end of the will in point of fact.

It will not, we think, be seriously questioned notwithstanding the provisions of the A ct of 1888, that any relevant paper or writing, attached or detached, if there be no reasonable question as to its identity, or of its existence at the execution of a will, may be so referred to therein, as thereby to become incorporate with the provisions. No case in Pennsylvania has been cited by counsel, with the exception perhaps of Hauberger v. Root, 6 W. & S. 437, in which this rule is expressly asserted, nor in the somewhat hasty search we have made, do we find any, in which the precise point is presented, but in Isnland, and in the courts of some of the states, under similar statutes, the doctrine is distinctly declared.

In Habergam v. Vincent, 2 Vesey, Jr. 223, which was a case decided under the Statute of Frauds, Wilson, J., sitting with Lord Chancellor Loughborough, says: “ I believe it is true, and I have found no case to the contrary, that if a testator in Ms will refer expressly to any paper already written, and has so described it that there can be no doubt of the identity, and the will is executed in the presence of three witnesses, that paper, whether executed or not, makes part of the will; and such reference is the same as if he had incorporated it, because words of relation have a stronger operation than any other.” This case was followed In re Countess of Durham, 3 Curteis 866, and in many other cases, both in the civil and ecclesiastical courts of England, and it cannot be doubted that such was the rule in the authentication and probate of wills, under the Statute of Frauds. By the statutes of 7 Will. IV., and 1 Viet. c. 26, however, all previous provisions, as to execution and attestation of wills were repealed, and it was thereby enacted that no will should be valid, unless in writing and executed as therein provided, and one of the requisites was that it should be signed, at the foot or end thereof by the testator, or by some other person in liis presence and by his direction. In Willis v. Lowe, 5 Notes of Cases 428, and in Smee v. Bryer, 6 Moore’s P. C. C. 404, however, it was held that the signature must be so affixed at the end of the will, as to leave no blank space for any interpolation between the end of the will and the signature. This was found to produce such extensive injustice, that bv the statute, 15 and 16 Vict. c. 24, the legislature interfered to alter the law so established, but in this amendatory statute it is expressly provided, that no signature shall be operative, to give effect to any disposition or direction which is underneath or which follows it, nor to any disposition or direction, inserted after the signature shall be made. Upon these provisions of the statute law of England, the case of Allen v. Maddock, 11 Moore’s Privy C. C. 426, was decided; in that case, after an extended reference to all the English authorities, and a full discussion of the subject, it was held that an unattested paper, which would have been incorporated in an attested will or codicil, executed according to the Statute of Frauds, is now in the same manner incorporated, if the will or codicil is executed according to the requirements of the Wills Act, 1 Vict, c. 26. That where there is a reference in a duly executed testamentary instrument to another testamentary instrument, imperfectly executed, but by such terms as to make it capable of identification, it is necessarily a subject for the admission of parol evidence as to its identity, and such parol evidence is not excluded by the 1 Vict. c. 26. The judgment in Allen v. Maddock, was delivered by Lord Kingsdown, who says “ It was not contended in this case, nor so far as we are aware, has it been contended in any case, since the Wills Act of 1837 (1 Vict.), that no reference, however distinct, is now sufficient to incorporate another testamentary paper in the paper duly executed as a will or codicil; but the question has always been, what reference in the valid paper is sufficient to let in evidence to identify the invalid ? ” The doctrine declared in Allen v. Maddock has not, we believe, in any respect, been modified, changed or doubted. It is followed in many subsequent cases, and is frequently referred to as containing a clear and elaborate exposition of the law on the subject: In re Almosnino, 29 L. J. P. 46; In re Ebenezer White, 30 L. J. P. 55; In re Birt, 24 L. T. R. 142.

In New York the Revised Statutes, inter alia, required that every last will and testament, of real or personal property, should be subscribed by the testator, at the end thereof. In Tonnele v. Hall, 4 Comstock 140, a will was written on several annexed sheets of paper, and was duly executed; a copy of a map was upon the last of the sheets, composing the instruments; it was referred to in the will, as being annexed, and for the description and designation of the several lots devised, but it was not signed by tbe testator, nor attested by tbe witnesses. The Court of Appeals held that where a will, otherwise properly executed, refers to another paper already written, and so describes it as to leave no doubt of its identity, such paper makes part of the will, although it be not subscribed or even attached. It was contended in the argument of counsel in that case, that such a sheet annexed must be considered as the beginning or the end of the instrument, merely in reference to its local annexation without regard to the contents of the writing to which it is annexed, but Jewett, J., delivering the opinion of the court, says: “ I cannot agree that such a circumstance can have the effect to constitute the paper referred to, the beginning or end of any instrument, in the body of which reference is made to it or its contents, whether annexed in fact or not. If the map on file in the Register’s office, or a reduced copy of it annexed, may be treated as a part of the instrument, and I think it may (Habergham v. Vincent, 2 Vesey, Jr. 228; Bond v. Seawell, 3 Burr. 1775; Wilkinson v. Adam, 1 Vesey & Beames 445,) its contents must be incorporated, and distributed in it to tbe extent of the several references made to it at tbe places where made; and thus the contents of the paper, to which the instrument refers, will be deemed constructively inserted before tbe point is reached where the subscription by the decedent and signing by witnesses are made.” We may also refer to similar rulings upon the same point in Loring v. Sumner, 23 Pick. 98; Wilbar v. Smith, 5 Allen 194; Johnson v. Clarkson, 3 Rich. Eq. (S. C.) 305 ; Chambers v. McDaniel, 6 Iredell (N. C.) 226; Phelps v. Robbins, 40 Conn. 250; Crosby v. Mason, 32 Conn. 482. Mr. Redfield, in his treatise on the Law of Wills, page 264, after a discussion of the authorities, English and American, says: “The cases already referred to show very clearly that a, will required to be witnessed by two or more persons, or executed with any other prescribed formalities, may, nevertheless, adopt an existing paper by reference. And this is true of others, soon to be referred to, many of which were decided during the existence of statutes requiring such formalities, so that we cannot escape from tbe force of these cases by supposing they had reference, exclusively, to wills of personal estate, when no particular formalities were required under the earlier English statutes.”

In our own state we find no case at variance with the doctrine of the eases stated; the rulings of this court on questions similar in effect and preliminary in their nature, to that under consideration, have, in every instance, been in conformity with the views here expressed. In Ginder v. Farnum, 10 Barr 98, it was held, that where a will is written on several sheets of paper fastened together with a string, proof by two witnesses of the signature of the testator, at the end thereof, is sufficient; that it is the signature, not the factum or body of the will which is to be established by two witnesses, and whether there has been any subsequent or fraudulent interpolation is for the jury, to be determined as other cases. In Wilcoff’s Appeal, 3 Harris 281, following the Earl of Essex’s case, 1 Show. 69, it was held, that a will may be made on distinct pieces of paper; that it is sufficient if they are connected by their internal sense, and that even if there be some confusion in the order of their arrangement, when fastened together, they are to be read according to their coherence or adaptation of parts. In Fosselman v. Elder, 2 Out. 159, it was held, that where the name and designation of the beneficial party was written not in the body of the codicil,'but upon the face of an envelope in which it was found, that the inscription on the envelope should be read as a preface to, and in connection with, the paper enclosed therein, and that they together constituted a valid testamentary disposition. Thus the general principle has been clearly established that a will is to be read in such order of pages or paragraphs as the testator manifestly intended, and the coherence and adaptation of the parts clearly require. In writing a will upon the pages of foolscap paper, a testator may or may not conform to the order of the consecutive pages of the folio: there is no law which binds him in this respect; he may begin upon the fourth page of the folio and conclude upon the first, or he may commence upon the first, continue upon the third, and conclude upoiAthe second; in whatever order of pages it may be written, however, it is to be read, as in Wikoff’s Appeal, according to their internal sense, their coherence or adaptation of parts. The order of connection, however, must manifestly appear upon the face of the will; it cannot be established by extrinsic proof. Whilst, therefore, the end of the writing in point of space may in most cases be taken as the end o± the disposition, it does not follow that in all cases the signature must, of necessity, be there written, if it be written at the end of the will, according to such connection and arrangement of the pages or sheets, as the obviously inherent sense of the instrument requires.

Where, however, the continuity of a writing otherwise complete is attempted to be broken by the insertion into it of a clause or paragraph, written upon the same or a different page or sheet, the clause to be inserted must be plainly referred to and be susceptible also of certain identification. The reference must, as we have already shown, be complete in the body of the will. The testator’s intention cannot otherwise appear; it cannot appear by extrinsic proof; but the identification of that which is sought to be inserted in the nature of the ease, may be the subject of extraneous proof.

A plain distinction is to be drawn between the case at bar and that of Hays v. Harden, 6 Barr 409; in that case there was no reference whatever in the paper purporting to be the will of John Hays, to the clause which followed; there was no word or mark in the body of the will indicating any intention of the testator at the time of execution that the appended, unattested clause should be drawn to and inserted at any designated place.

Referring then to the will of George Baker, we see that the several items contained in it are, in their order, from the beginning to the end of the disposition, consecutively numbered in Roman numerals; at the 4th item we find the following:—

“4. I give and bequeath to David S. Baker, our son, two hundred — see next page.”

The erasures in this 4th item are presumed to have been made before the signing and attestation, but they have some significance in this inquiry, inasmuch as the subject of the devise to David S. Baker is the only matter erased; the numeral, “4,” and the name of David S. Baker, the beneficial party under it, remain, a fact which is entirely consistent with, the idea that the error to be corrected by the erasure was as to the thing devised. The words which are not erased contain a clear reference to something to be found on the next page, something which is to constitute part of his will, otherwise the reference in that connection is without meaning and something to be inserted at the place of the reference. This is as apparent as if it had been fully expressed in as many words.

In the Goods of Birt, 24 L. T. R. 142, the will of Charles James Birt, after a devise to the testator’s wife for life, contained the following: “With the full understanding, that the four free-bold cottages, situate at Finchley, in the county of Middlesex, and called by name, and known as Nos. 1, 2, 3 and 4 Arlington Cottages, * (see over, C. B.),”

Upon tlie back of the will there was written :

“ *' that the said four cottages, at her decease, should be given, and shall then belong to my daughters, Ellenor and Elizabeth, now the wife of Mr. Cuthbertson, and the said four houses to be her own property and under her own sole control.

Charles Bert.”

It was shown, by parol, that the words on the back of the will were written there by the testator before be signed the will; they were not attested, however, by witnesses, as the «English statute required ; indeed, the witnesses knew nothing of it. Lord PbnzANCE, in admitting this will to probate, says: “I have rio hesitation in sa3ring, that the words written at the-back of this wrill ought to be included on the probate; the reason and good sense of the thing are in the same direction. The clause in the will has no meaning without these words — it is a sentence without any sense begun but never finished. The testator, at the end of this unfinished part of the will, puts a mark, and at the back of the will he puts a corresponding mark before certain words which finish the sentence. It is obvious, therefore, that if all this was done before the will was executed, the testator intended that which was physically on the opposite side of the page to be read in, as if it preceded his signature. It is therefore intended to be part of the will. It will be better, therefore, in construing the words of the statute, to treat these words as if they preceded the signature, although they seem to follow it.”

So in this case, without the insertion of something the fourth item is without meaning: “it is,” in the language of Lord PENZANCE, “ a sentence without any sense, begun but never finished.” It purports in the outset, as the fourth item of the will, to contain a devise or bequest to David S. Baker, but by the erasure, it is broken off abruptly, before the disposition is completed. It is apparent that, in the body of the will, there was not room for completion, and therefore reference is made to the next page. This reference is clear in its purpose and specific in its terms, neither can be mistaken. If the word's “ For the fourth item of this will, containing a devise to David S. Baker, see next page,” had been employed, they would not convey a more specific meaning than is conveyed by the words and figures actually employed. That the testator’s intention was to incorporate into his will, bj’ insertion at the place indicated, something to be found on the next page, is perfectíy apparent arid obvious; no one in reading the instrument could doubt the testator’s purpose in this respect.

The physical annexation of the pages, taken with the uncon-tradicted proof, affords the clearest and most satisfactory evidence of identification. The “next page” of the folio cannot be mistaken, and referring to it, we find a clause thereon written, in the same hand, in the form following:

“ 4th. I give and bequeath to our son, David S. Baker, our son, two thousand, to be paid in rotation of numbers. I give and bequeath to our grandchildren, Margaret Baker and George Baker, daughter and son of David S. Baker, five hundred dollars each, to be paid in rotation, in rotation, to Lewis J. Baker, whom I appoint guardian for the same. .Also I appoint the same as guardian for G. M. Baker’s two girls Viola and Ella.”

It is true that this writing contains more than a devise to David S. Baker, but this, we think, is not important, as its identification as an entirety is put beyond question. We are of opinion, therefore, that by force of the reference in the body of the will of George Baker, and the clear identification of the matter referred to, the writing on the fourth page is, ipso facto, drawn into the body of the will, and constitutes the fourth item or clause thereof; and although the instrument, thus formed, is not signed by the testator at the end thereof, in point of space, it is signed at the end of the will, in point of fact, which is in conformity with the requirement of the Act of 1833.

The decree of the Orphans’ Court is therefore reversed, and it is ordered that the decree of the Register be reinstated.

Chief Justice Mercur dissented.