In Re McNair's Estate

The majority opinion is based on 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. The burden of proving due execution is on the proponents of the will. In re Taylor's Estate, 39 S.D. 608, 165 N.W. 1079. The first question here is whether the proponents have sustained the burden of proof.

The instrument in question consists of three sheets of paper, unattached. The entire instrument is in the handwriting of the testatrix. In the first paragraph she states "I, Ella McNair of Wessington, So. Dak. do hereby make my last will." This is followed by a number of specific bequests in separate paragraphs, and a paragraph creating a trust in part of the estate. The writing first covers one side of each sheet of paper and continues on the back of the third sheet to about the middle of the page. It does not revoke former wills, it does not appoint an executor, and contains no concluding paragraph to indicate that the will has been completed. It is not signed at the end. At the top of the second sheet she wrote "Will of Ella McNair" and at the top of the first paragraph of the third sheet she wrote "Will, Ella McNair."

An holographic will must be completed and signed, though not necessarily at the end. "If it is at the end of the document, the universal custom of mankind forces the conclusion that it was appended as an execution, if nothing to the contrary appears." Further: "The name written at another place than the end of the document, and not for the purpose of authenticating it and indicating its completion, but merely to identify the person who is making the will, cannot be deemed to be a name `signed' to the document, unless that word is given a meaning entirely different from that which it is generally understood to have." In re Estate of Manchester, 174 Cal. 417, 163 P. 358, 359, L.R.A. 1917D, 629, Ann. Cas. 1918B, 227.

When the written name of the testator appears in the exordium there must be something in the document or in the closing paragraph to indicate that the testator intended to adopt that signature as the executing signature of his will. In re Hurley's Estate, 178 Cal. 713, 174 P. 669.

It has been held that "The abrupt termination of the document near the middle of the last page is a strong indication of decedent's intent to do something more in order to make a complete will." In re Bernard's Estate, 197 Cal. 36, 239 P. 404, 405.

It has been held that where the testatrix wrote her name in the exordium clause and wrote a concluding paragraph declaring it her will "written, dated and signed by my own hand" not followed by testatrix's signature was a sufficient execution of the will, "on the ground that the declaration of the testatrix that she had signed the document by her own hand was an adoption by her of her signature as written in the body of the will as her signature in execution of it." In re McMahon's Estate, 174 Cal. 423, 163 P. 669, L.R.A. 1917D, 778, as reviewed in Re Devlin's Estate, 198 Cal. 721, 247 P. 577, 580.

Where there is nothing from which the inference can be drawn that the testator signed the will or that he intended to adopt as his executing signature the name he has inserted in the exodium, the evidence is insufficient to prove execution. In re Devlin's Estate, 198 Cal. 721, 247 P. 577.

In re Streeton's Estate, 183 Cal. 284, 191 P. 16, 18, the name of the testator was written by him in the upper left-hand corner of the page. In affirming the Manchester and Hurley cases the court said: "It must be assumed that it was placed on the document for some purpose, and the only apparent and reasonable purpose under the circumstances would seem to be the signing of the instrument with the intention of authenticating the same. This conclusion becomes the more compelling when we consider that the name is written in a blank space at the beginning of the instrument; for such a space is the most natural one in which to place a signature when the usual place at the end of the document is unavailable. The fact that the end of the page was torn off * * * tends to support, rather than defeat, the inference that the name was written at the top of the page with the intention of authenticating the instrument." It was held that the will was properly executed on the ground that it appeared from the instrument itself that the testator intended his name to be his signature. In the case at bar the will terminated near the middle of the last page and the additional space was available for the testatrix's signature. The inference referred to in the Streeton case has no application to this case under the facts.

In re Bauman's Estate, 114 Cal.App. 551, 300 P. 62, 64, it was found that "The final clause gives a finishing touch indicating that the testatrix considered it a completed thing with nothing more to be added," and that this constituted a sufficient execution of the will though the signature was found no other place than in the exordium.

The Supreme Court of California In re Kinney's Estate,16 Cal.2d 50, 104 P.2d 782, has held that completeness alone is sufficient evidence of the adoption of the name placed in the body of the instrument as the signature of the testator.

The case of Lemayne v. Stanley, an English case reported in 3 Levinz 1, often referred to as the leading case on the signing of holographic wills was in fact an attested will. The will was also a sealed instrument and three of the judges concluded that the seal itself was a sufficient signing. It might also be observed that this decision was followed by an amendment of the statute requiring that all wills be signed at the end thereof.

The abrupt manner in which the will was terminated at the middle of the last page, without a signature; the failure of decedent to indicate an intention to adopt her name written elsewhere as an executing signature, and the absence of anything else in the document showing an intention to give it finality, leads one to the conclusion that the name of decedent as it appears in and on the instrument was written there for the purpose of identification and not for authenticating it or to indicate its completion as a will.

In the contest of wills issues of fact may be raised as to the due execution of the will by decedent and any other questions substantially affecting the validity of the will. SDC 35.0301. In this case contestants allege that the instrument was not signed nor executed as a will, and that it was not intended by the deceased to be her will. At the hearing on the contest in the county court and on appeal in the circuit court evidence was introduced showing that Ella McNair was educated, intellectual and capable. She taught school for many years, managed her own property after the death of her husband in 1936 and she had made at least three prior wills, one of them holographic. She died in 1946 at the age of eighty-three without issue. Some two or three years before her death her attorney, at her request prepared the form of a holographic will for her use in writing a new will. The instrument in question follows the form thus prepared, precisely, until it reaches about the middle of the section creating a trust. Then she deviated from the form and apparently completed that section. There the document ends. But, the form prepared by her attorney contained a paragraph revoking all prior wills, and still another paragraph naming an executor. At the end was a line and under it was written the word "signature" in parentheses. None of these provisions indicated by the form are contained in the document and the will was not signed at the end as was indicated by the form. It appears that after decedent was taken to the hospital she made preparation for the execution of still another will and submitted to her attorney instructions therefor. Such will was drawn by him for her signature but she died before signing it. It also appears from the evidence that the proposed will fails to make disposition of all of decedent's property. Other property of the value of about $3,000 was not disposed of by the document, and the document contains no residuary clause. The attorney's outline was still among decedent's possessions at the time of her death. This evidence was submitted in the county court and in the circuit court, over proponents' general objection that extrinsic evidence was not admissible on behalf of contestants to show that the document was neither completed nor executed. Findings of fact were made in the county court and in the circuit court based upon this evidence. In the brief respondents argue the extrinsic evidence without discussing its admissibility, and contend that it strengthens respondent's case. Yet, the majority opinion on the principle announced in the Brandow case holds that evidence of surrounding circumstances is incompetent and inadmissible and gives it no consideration on this appeal.

The rule stated in the Brandow case is to the effect that "* * * a fatal defect in the execution of the instrument appearing on its face cannot be aided or supplied by parol proof." 68 C.J., Wills, § 765. In the Brandow case the instrument was signed by decedent at the end. It was completed and executed. The issue was whether the instrument was testamentary in character and the court held "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." [59 D. 364, 240 N.W. 324] The court followed the general rule that when a will is in the handwriting of decedent and shows on its face that it was a completed instrument with the name of the decedent signed at the end, the execution of the will is established subject to other questions which substantially affect the validity of the will. In re Estate of Manchester, supra. In other words the proponents have then sustained the burden of proof.

Even if it be assumed that the burden of proof has been sustained by the document itself, the contestants have the right to oppose the probate of it on the ground that it was not duly executed. SDC 35.0301. It is a general rule that where the issue is whether a will was executed the plan or design or prior intention of the testator is relevant to show the doing or not doing of the alleged act. Wigmore on Evidence, 3d Ed., § 112, "* * * In arriving at such intention the court is not limited to an examination of the document itself, but may consider surrounding circumstances." 68 C.J., Wills, § 225. When it has been proved that the testator signed the instrument and the subscribing witnesses have signed the usual attestation clause "there arises a strong presumption that every one of such statutory requisites were complied with." However, this presumption may be overcome by clear and satisfactory evidence. In re Taylor's Estate, 39 S.D. 608, 165 N.W. 1079; Campbell v. Henley, 172 Tenn. 135,110 S.W.2d 329. It is my opinion that the Brandow case does not deny the admissibility of the extrinsic evidence submitted at the trial on behalf of contestants and in rebuttal, and that such evidence should be considered by this court on the question of whether decedent intended her name, as it appears in the instrument, as an executing signature.

I can find no evidence in the document to justify the statement that "the instrument was written at a single sitting." When a so-called will consists of several loose sheets of paper, has not been signed at the end, and contains no concluding paragraph designed to give it finality decedent might have added a paragraph when it suited her mood, and she might have destroyed and added pages at her pleasure. Such a writing has no more finality than a loose-leaf ledger system.

It is my opinion that the judgment in this case should be reversed.