Maris v. Adams

The following instruments and whether the same meet the requirements of a holographic will, constitute the main issue in this record. I quote from appellant's brief:

"(1) An envelope on which is written horizontally the words ``Henry Boyce,' and across the end the word ``Notes.'

"(2) A sheet of paper apparently taken from a small writing tablet, and on which was written the words: ``Henry, please except this you F. Y. Adams for the kindness shown me.'

"(3) A promissory note prepared on a printed blank, a copy of which, putting script parts in italic, is as follows:

"``$14,000 Dumas Texas, July the 3, 1911

"``Fifteen after date after date, for value received, I, we or either of us promise to pay to the order of F. Y. Adams Henry Boyce FourteenThousand Dollars dollars, with _____ percent interest per annum thereon from _____ until paid, interest payable annually, and if not paid to bear the same rate of interest and if default is made in the payment of this note at maturity and it is placed in the hands of an attorney for collection then an additional amount of ten percent on the principal and interest of this note shall be added to the same as collection fees. The makers and endorsers of this note hereby severally waive demand of payment, notice of nonpayment, protest and notice of protest and hereby consent that time of payment may be extended from time to time without notice hereof. E. Vanlaw.

"``Due ......

"``No. ......

"``P. O. ......'"

I agree with the majority of the court upon the disposition of the cause that the above instruments do not constitute a holographic will, upon one ground only (discussed later), dissenting, however, from the majority on the question of testamentary intent, and disagreeing, further, with Associate Justice HALL on the question of incorporation by reference of the note in the other instrument as an applicable principle destroying said instruments as a will. Upon the question of testamentary intent, candor actuates me in saying that it is with some hesitancy that, as applied to the foregoing instruments, I pronounce testamentary intention as being susceptible of judicial proof in order that said instruments may be declared a holographic will. The forcible presentation by the majority, and the elaborate opinion of Justice HALL, and the grounds of policy advanced upon which the proposition of invalidity is based on this question of posthumous intention, exhaustively cover that side of the controversy and that view of the question; however, I consider the great swing and tendency of the American and English decisions against the view therein advanced, and, whenever and wherever the question has been presented, has been under statutes defining wills, in substance the same as our statute, both in England and in America. I reproduce some of the cases cited by appellee, which I am inclined to think indicate the sweep of the law in the direction taken in this opinion, on the question of testamentary intent and applicable to all the documents propounded for probate.

In Wareham v. Sellers, 9 Gill J. 98, by the Court of Appeals of Maryland, the following instrument was offered for probate by the proponent and denied by the trial court: "This will certify that I do assign, and gave all my personal property unto George Wareham — that is to say, one silver watch, one chest, one beaurough, and some carpenter's tools, besides two notes of hand, one $200 and one of $89, and $18 book account. Signed by me in the presence of Thomas Sater. [Signed] Phillip Sellers." The contestant in that cause "admitted that no particular form of expression or execution was essential to constitute a will, yet that a testamentary disposition should appear upon its face, or it should seem to refer in some mode to the death of the maker"; the proponent contending that "the paper contained intrinsic evidence that it was made as a will." The discussion and the issue of testamentary intent is obtainable from the briefs; the Court of Appeals merely reversing the decree of the orphans' court, ordering that court to "reinstate the petitioner and receive the testimony offered by him and proceed to a hearing and trial of said cause, as to law and Justice shall appertain."

The Supreme Court of North Carolina, in the case of Outlaw v. Hurdle,46 N.C. 150, had under consideration the following instrument: "It is my wish and desire that my good friend and relative Dr. Joseph B. Outlaw, have all my property of every description. [Signed] David Outlaw." The Supreme Court of that state said: "It is a very grave question. Taking all the allegations of the propounder to be true, is the scripttestamentary? A disposition? In plain English, did the deceased mean to dispose of his property after his death by the force and effect of that very paper? We think he did. As it embraces all his property of every description, it is clear it was not intended as a gift inter vivos, * * * and, as he most unquestionably intended that it should have some effect, it is manifest that his intention was to make a disposition of his property, to take effect after his death, by the force and effect of that paper. * * * So that, besides the paper itself, we have the facts, as found by the jury, that the deceased did not treat this as a paper such as one would throw into the street, but he treated it as a valuable paper, put it carefully away among his bonds, in his * * * trunk, and it was there found at his death. It is obvious, therefore, that he intended, by the force and effect of this paper, to dispose of his property after his death. He intended it to be his will."

The case of Clarke v. Ransom, 50 Cal. 599, involved the question of testamentary intent as applied to the following instrument: "Dear old Nance: I wish to give you my watch, two shawls, and also $5,000.00. Your old friend, E. A. Gordon." The Supreme Court of California said: "On its face there is nothing to indicate that it was intended to be testamentary. The full name of the beneficiary is not mentioned, nor is there any reference to the anticipated death of Mrs. Gordon." This instrument, according to the opinion of the court, depended upon oral evidence as to the situation of the donor, relationship to the donee, and identification of the latter as a "valued" friend of the former, stating: "It is well settled in this country and in England, first, that in determining whether the instrument propounded was intended to be testamentary, reference will be had to the surrounding circumstances, * * * and, second, that if it shall appear under all the circumstances that the instrument was intended to be testamentary, the court will give effect to the intention," etc. The Chief Justice of the Supreme Court of California dissented from the opinion of the other four judges.

The case of Tozer v. Jackson, reported in 164 Pa. 373, 30 A. 400, embodied for probate the following instrument: "High, James Rogers, do give to John Jackson, Sr., my property known as Penargyl hotel, and the land adjoining Penargyl in Northampton county, P. A. [Signed] James Rogers." The Supreme Court of Pennsylvania said: "How could there be any more direct, emphatic, and positive expression of a purpose on the part of James Rogers to give the property described to John Jackson, Sr.? * * * And no legitimate contention can arise upon that aspect of the subject."

In the course of a review of numerous decisions involving imperfect wills, some of which I have cited in this opinion, and following a review of the case of Cocke v. Cocke, 1 Prob. Div. 241, which seems to be a leading English case on this subject, the Supreme Court of Pennsylvania further said: "Here the deceased, instead of destroying the paper, as he would necessarily have done if he did not intend it to become operative, preserves it, incloses it in an envelope, addresses the envelope to the person who is named as a donee, and places it in a conspicuous position where it would certainly be discovered, and then takes his life. It is impossible to conceive of a stronger purpose and intent." This court commented upon the form of the instrument attempting to convey real estate, which, on account of its form, could not possibly have that effect until after the death of James Rogers, as a circumstance indicating effect after death. The statute of wills of England, Victoria 1837, effective 1838, amending the old statute, was in effect when the case of Cocke v. Cocke was decided in 1865 by the Court of Probate and Divorce of England, the opinion rendered by Sir J. P. Wilde; also the case of Robertson v. Smith Lawrence, L. R. 2, P. D. 43, decided by the same court opinion rendered by Lord Penzance in 1870. The latter case involved this instrument: "I hereby make a free gift to Maria R. of sixty pounds and to John V. of fifty pounds, being the sum deposited by me," etc. And parol evidence of the surrounding conditions was admitted to show the intention to make a testamentary gift. The former case, Cocke v. Cocke, embraces for consideration this instrument: "I wish myn sister, Louisa Cocke, of 104 York Road, Lambeth, to have my Schering (Charing) Cross bank book for her own use. December 7, 1865." Sir J. P. Wilde said: "The only question raised with respect to it is whether it is meant to be testamentary. In order to form a proper judgment, it is very material to look at the words written and the acts done by the testatrix in the light in which a person of her imperfect condition would be likely to regard them, and not attach anything like a technical meaning, of which she was ignorant, to the language she has used. The expression, ``I wish myn sister to have,' appears to me to imply, ``I wish her to have after my death,' because when she wrote these words she was dangerously ill. * * * If she had merely wished to make her sister a present, she would not have taken the trouble to write anything at all, but would simply have handed over the bank book to her, etc. It is undoubted law that, whatever may be the form of a duly executed instrument, if the person executing it intends that it shall not take effect until after his death, and it is dependent upon his death for its vigor and effect, it is testamentary." As stated, while the English decisions, except the last quoted from, are not accessible to us, but, from the annotations and other decisions appropriate on this subject, we infer that the cause of Cocke v. Cocke is considered a leading case. It is noted that the English judge in this instance, deducing the implication of a causa mortis intention of the donor, did so "because when she wrote these words she was dangerously ill and did not expect to live," etc., resorting to parol proof for that purpose. If the promissory note, though written wholly in the handwriting of Vanlaw, and found in his tobacco box, without any other explanatory features in connection with it, payable to Adams Boyce, were as indicated, truly it would not be a will. However, we can infer these steps clearly from this record: That he executed the promissory note, partly printed and partly written, and the writing, "Henry, please except [accept] this, you and F. Y. Adams, for the kindness shown me." (I inserted the commas before "you" and after "Adams.") He placed the note and the other instrument in an envelope and sealed the same. Horizontally he wrote the name "Henry Boyce" on the envelope, and across the end of the envelope the word "Notes." That he placed the same in a receptacle in his home in Moore county. Conclusively the intention to give is manifest; the only question being whether in præsenti or in futuro — now or after death. There is a principle of construction which seems never to have been denied; that is, the law favors the interpretation to avoid total or partial intestacy, and "the swift willingness in this regard has passed into a rule of construction." As seen from the foregoing authorities and others, some of the courts imply a testamentary intent and aid it with oral proof; some of the decisions indicate that, though the instrument is not indicative of testamentary intent, parol proof though is admissible for that purpose; some of the authorities suggest that, where the instrument is doubtful, susceptible of two interpretations — one of a present gift, as well as a gift after death, with parol proof aiding the construction of testamentary intent, and not detracting from it — the instrument constitutes a will. We take it the contervailing theory is, as to the instruments directly involved, that there is nothing here to imply testamentary intent from the face of the instrument, and that there is everything implying a gift inter vivos; that the promissory note in connection with the other instrument signed by Vanlaw indicate a gift in præsenti.

I deduce from the foregoing decisions, or at least some of them, that if, from the subject-matter, or from the form and manner in which the donor manifested his dispositive intention, if an implication of testamentary intent may be inferred, though it may also suggest an intent inter vivos, parol evidence is always admissible. In the Maryland case the man gave all his personal property, and the instrument indicated a present gift as well as after death; in the North Carolina case the donor gave all of the real and personal estate. The instruments were susceptible of a present as well as a testamentary gift. It is, however, unusual for a donor to give all his property in his lifetime. Lord Wilde, in the case of Cocke v. Cocke, commented on the unusual act of the donor giving a bank book during life. Something is said that the words "please accept" is suggestive of a present dispositive intention, and that the note indicates a present payment or gift. Without pursuing the subject too lengthily, in considering all the instruments, I believe the dispositive intention of a testamentary nature may be implied, considering the matter as a whole, that is, by the execution of said instruments by Vanlaw, placing the same in the envelope, and sealing the latter with his inscription and indorsement upon the back thereof, and taken in connection with the further fact that it is a demand note for the sum of $14,000. It is unusual for a man to dispose during his lifetime of all his personal property, though he may use words indicating a gift in præsenti; the same is applicable to the disposition of all of a man's real estate, though the language, literally construed, also indicates a present gift. It is unusual for a donor to give a bank book during life — the nature of the gift has a strange aspect — so I think it is a very rare occurrence, exceedingly so, for a man to make another a gift of a demand note; it contravenes common experience to say that one in making a gift, placing the power in the donee to compel the donor to pay the immediate obligation, intends it as a present gift. When Vanlaw wrote, "Please except this you and F. Y. Adams for the kindness shown me," of course he intended to say, "Please accept this, you and F. Y. Adams, as a gift, for the kindness shown me." Whether he intended them to accept the gift after death, or in præsenti, we may say is doubtful by construction of the implied meaning of the instruments. The way I view it the incident of a gift by one to another of an obligation practically payable on demand, in this case of $14,000, with attorney's fees a part of the note, and necessarily paid out of the assets, if the donor had not the ready money to meet the obligation upon demand, excludes more the idea of a gift in præsenti, and is more significant of the idea that the donor meant to give the amount of the note after death; and being of doubtful construction as to the intention of the donor when aided with parol proof as to the situation of the parties, if the Instrument then further excludes a gift in præsenti, to that extent it is testamentary and a will. When you resort to parol proof, the face of the note is practically two-thirds in amount the value of the donor's estate, excluding his debts, and that with this aid, and other incidents corroborative of the man's meaning, it clearly excludes the idea that Vanlaw intended to give Boyce and Adams an obligation during life which would practically absorb his estate, unless you infer it was the act of a lunatic.

In an instrument as to which, from the subject-matter and the nature of the gift, it could be implied that the gift is incompatible with the idea of a present assignment (though by another interpretation it may be compatible with a present gift), the doubtful meaning of the instrument may be aided by parol testimony to ascertain the real intention of the donor. Justice Stayton, in the case of Heidenheimer v. Bauman, 84 Tex. 174,19 S.W. 382, 31 Am. St. Rep. 29, had no record similar to this under consideration in writing the opinion in that cause, and the real question decided, however eminent the judge, and the real record imaged in the judge's mind when deciding it, should be considered in attempting to apply the language of that judge to a different question. Justice Stayton did, however, say in that cause: "Parol testimony is admissible often toenable the court to give effect to an intention expressed in a will; * * * but it is never admissible for the purpose of showing a testator's intention by proof of his oral declarations of intent, either as to the persons who shall take his estate or as to what particular part of his estate any one person was intended to receive." Where clearly expressed, when testamentary intent is involved, which Justice Stayton did not have in view, you do not need parol proof; when doubtful it is necessary and always admissible in will cases.

I disagree, however, with appellee in the assertion that the cause of Crain v. Crain, 21 Tex. 790, decided by Chief Justice Hemphill, is of great value in determining this immediate question in his favor in this cause. In that case the plaintiffs claimed that certain deeds were unofficious wills in contravention of the statute of forced heirship. The defendant contended that they were deeds conveying the property in præsenti. The condition of the pleadings and the attitude of the litigants were such that, upon the jury's finding that they were instruments of a testamentary nature, in violation of the disinherison statute, and not conveyances of a present estate, the Supreme Court merely held, the formalities with reference to the execution of the instruments not having been contested, that the instruments were of a testamentary nature, and partially void and partially valid, conveying a one-fourth estate, instead of all of the property. The court, in saying that they were instruments of a testamentary nature, was not deciding that the deeds in that record, if they had been contested under the statute were wills in compliance with our statute of wills. I rather concede that some of the other Texas cases cited by appellee, where deeds were construed wills, tend to sustain his contention as to testamentary intent, for the reason that in some of those causes, while language was used to show that the possession of the estate was postponed to a time after the death of the donor, and the donor had the use of the property during life, however, the title to the property, according to the terminology of the instrument, really passed in presenti, at least so I view it; but evidence was permitted to be introduced to show that the title was also testamentary. The fact of sealing instruments in an envelope, and addressing the latter to the intended donee, and retaining such envelope and instrument therein inclosed in the possession of the donor, in some receptable, while it is proof of a fact in parol, is deemed by all the courts as a circumstance of significance, aiding the testamentary intent of the instrument in which the property is intended to be given.

This logically brings me to the point wherein according to my conception of the law, this instrument cannot be construed as a valid will under the statute. The doctrine of incorporation by reference I do not believe applicable to the instruments in this record. The Supreme Court of Pennsylvania, in the case of Fosselman v. Elder, 98 Pa. 159, had under consideration a sealed envelope, found among the papers of the deceased, on which was written the following words, addressed to the donee: "Dear Bella: This is for you to open." And when opened the following was found: "My wish is for you to draw this $2000 for your own use should I die sudden." The envelope contained a certain note for $2,000. That Supreme Court did not have under consideration the question of incorporation by reference; but it did have the natural sequence of the writings, and were of the opinion "that the inscription on the envelope should be read as the preface of and in connection with the paper inclosed therein, and that they altogether constitute a valid testamentary disposition of the accompanying note operating as a codicil to the will of the testatrix." The court also said. "The natural order of reading ought to control, and that is, the name of the party addressed, first, and then what is written, or concerning him." The note in this record is not a specific legacy, but, if a valid will, would have to be construed a general legacy, chargeable upon the estate of Vanlaw. The "please accept" instrument is incomplete and practically meaningless without the general legacy. Appellee construes this instrument, if we understand his brief correctly, as a part of the transaction of the execution of the note. If the note were executed at the time the other paper was also executed, I mean contemporaneous in law, as a part of the will-making act, all the parts are necessarily construed together as ingredients of the testament. This, as I view it, is not incorporation by reference within the legal meaning of that doctrine under the authorities. This is making a will all at one sitting. If the donor had written; "Henry, you and Adams, please accept the following for the kindness shown me. E. Vanlaw" — then the following language on the same sheet of paper would have been, "To Henry Boyce I bequeath $7000 and to F. Y. Adams, I bequeath the same amount;" and, if the latter language were printed, I am unable to conceive by what process of reasoning the instrument complied with the statute as a holographic will, whether the "following" was signed or unsigned. I admit that some of the authorities, from the facts, indicate that an unattested document made immediately previous to the writing of the will may be incorporated by reference into the will, but in any case accessible to the writer you are not required to go to the incorporated document to determine whether the instrument was a will, the incorporation of the document by reference means bringing it into the will; the will is already made in so far as the intent to give after death and the other formalities are concerned, and the antecedent memorandum is drawn in by reference. If A. were to write that he gave to B. "the property evidenced by a printed memorandum, made by me at the time of signing this instrument," and the printed memorandum was an instrument bequeathing a legacy of $14,000 to B., and though the memorandum were signed, I am unable to conceive the transaction a will — it is partly written and partly printed.

Incorporation, of course, is a will-making act, performed at the same sitting of the making of the will; but making a will at the same sitting and writing it all at that time is not incorporation, and I so construe the transaction here — all acts construed together as will-making acts performed at the same time, and all necessary to be taken together as a valid will, but all when construed together is not such.

Neither do I think that the Geary will, under the jury's finding and the record here, referred to in the court's opinion on the motion for rehearing, on the proposition of revocation, notwithstanding the residuary clause, revoked the Boyce-Adams instrument, if the latter were a will. I am convinced that the declaration made by Vanlaw at the time he executed the Geary will was clearly admissible for that purpose; it was res gestæ of a transaction of the making of that instrument. I am not holding that this testimony of his declaration, in substance that he had Boyce and Adams already fixed, was admissible to prove the testamentary intent entering into the Boyce-Adams instrument, but as a declaration to prove that the Geary will was not the only will of the testator; the declaration, having been made when the latter will was made, was competent.

The Supreme Court of Colorado said: "The two are to be taken together as forming one will, unless the circumstances under which the last will was made prohibits such a condition, or the conditions of the two wills are so repugnant and inconsistent that they may not stand together. In this connection we will say that the court erred in striking out the testimony concerning the conversation that took place at the time of the execution of the last will, and the testimony of the witness Hanington. The conversation was a part of the subject-matter, and was admissible for the purpose of determining the intention of the testator in relation to the will which was then in existence, and of the facts and circumstances attending the execution of the wills. 1 Underhill on Wills, p. 39," Whitney et al. v. Hanington, 36 Colo. 407, 85 P. 86. See, also, In re Venable's Estate, 127 N.C. 344, 37 S.E. 465, quoting section 407 (2d Ed.) Schouler on Wills; Gordon v. Whitlock, 92 Va. 723, 24 S.E. 342; In re Pilsbury's Will, 50 Misc. 367, 99 N.Y.S. 68; Williams v. Miles,68 Neb. 463, 44 N.W. 705, 96 N.W. 151, 62 L.R.A. 383,110 Am. St. Rep. 431.

I do not construe the residuary clause as a nullity, according to the contention of appellee, but think that the jury were entitled to consider Vanlaw's age, his unmarried state, the short intervening time between the making of the two instruments, and the testimony of the declaration indicated for the purpose of finding whether the last will revoked the former, which is always a question of intent. If not revoked, the two instruments are construed together — the last in the nature of a codicil.

I am also inclined to think that the court is in error in affirming the judgment of the lower court, admitting the Geary will to probate. I construe this record in its travel from the county court to this court as solely embodying, in so far as the question of probate is concerned, the Boyce-Adams will exclusively. The transcript from the county court to the district court excludes the idea that the Geary will was used for any other purpose in the county or district than one of proof of revocation by the appellant, Maris, of the Boyce-Adams will. In the district court the proponent of the Boyce-Adams will, by supplemental pleading, averred that the Geary will, upon an appeal from the county court of Moore county to the district court of that county, had been denied probate by the latter court in a different proceeding between the appellant, Maris, and the beneficiary, John Geary; further stating that, if the court in this proceeding did not construe such former judgment as res judicata, said Geary will be admitted to probate with the Boyce-Adams instrument. There is no proof of the former judgment — simply an averment by the pleader — and in the condition of this record I am constrained to believe that the same pleader has not invoked the jurisdiction of the district court, and the same is not shown in order that the Geary will could be probated; and it could not be presumed, in the state of the record, that the district court was acting in an appellate capacity for the purpose of probating said will. I agree with the court that a correct judgment in this case is a rendition of the trial court's judgment as to the Vanlaw-Boyce-Adams instrument, but think that the judgment probating the Geary will by the district court of Moore county should be reversed and remanded, and respectfully dissent from the reasons and findings of the majority to the extent herein indicated.