Day v. Williams
| Decision Date | 01 November 1938 |
| Docket Number | 28117. |
| Citation | 85 P.2d 306,184 Okla. 117,1938 OK 554 |
| Parties | DAY v. WILLIAMS et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 20, 1938.
Syllabus by the Court.
1. A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It need not be witnessed (Sec. 1545, O.S.1931, 84 Okl.St.Ann. § 54), and may be proved in the same manner that other private writings are proved. Sec. 1100, O.S.1931, 58 Okl.St.Ann. § 31.
2. No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. Sec. 1118, O.S.1931, 58 Okl.St.Ann. § 82.
3. Two witnesses required by statute to prove the provisions of a lost or destroyed will must each be able to testify to the provisions of the will from his or her own knowledge and not from declarations of another, even the testator himself.
4. Where the will is not produced, evidence to establish its existence and contents must be clear and convincing.
5. Statutes relative to proving lost or destroyed wills are mandatory and may not be disregarded.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Proceeding by Sophia E. Day to probate a copy of a lost holographic will which was contested by Robert L. Williams and another. Judgment for contestants, and proponent appeals.
Affirmed.
Porter H. Morgan and Jack W. Page, both of Oklahoma City, for plaintiff in error.
Bruce & Rowan and Hugh M. Bland, all of Oklahoma City, for defendants in error.
This is an appeal from a judgment of the district court of Oklahoma county sustaining a demurrer to the evidence of the proponent offered on petition to probate a copy of a purported lost holographic will.
The record discloses that R. J. Lee died in Oklahoma county on May 11, 1936; that the deceased was a resident of said county and was seized and possessed of real and personal estate located in said county and State of Oklahoma.
On June 9, 1936, Sophia E. Day, the sister of the deceased, filed her petition for the appointment of herself as administratrix of the estate of the deceased. In the petition it was alleged that R. J. Lee died intestate, and that due search had been made to ascertain if the deceased had left a last will and testament, but that none had been found. The petitioner was duly appointed administratrix of the estate and assumed her duties and served as such until September 28, 1936, when the county court issued an order removing Sophia E. Day as administratrix of said estate.
On October 7, 1936, Sophia E. Day filed in the same case her petition for the probate of a purported holographic will of the said R. J. Lee, deceased. It was alleged in the petition that R. J. Lee died testate, having made his last will and testament on the 15th day of December, 1934, in which the deceased demised all of his property to the petitioner Sophia E. Day, and that the will was in her possession at the date of the death of deceased, and that it had since been lost or destroyed by a person or persons other than the petitioner. A copy of the purported will was attached to the petition.
A protest was filed against the probation of the purported will, denying the execution of such a will. The county court denied the probation of the copy of the purported will, and the proponent of the will appealed to the district court. After a hearing of all the evidence presented by the proponent, the court sustained a demurrer of the protestants thereto, and dismissed the appeal and the judgment of the county court was sustained. From that judgment this appeal was taken.
The several contentions of error present to this court the single proposition, that the court erred in sustaining the demurrer of the contestants to the evidence produced by the proponent of the purported will.
As to holographic wills, section 1545, O.S.1931, 84 Okl.St.Ann. § 54, provides:
As to the requisites of proof of a lost will, section 1118 O.S.1931, 58 Okl.St.Ann. § 82, provides: "No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses."
In the instant case there is no contention that the will was fraudulently destroyed in the lifetime of the testator, but it is alleged that the will was in existence at the time of the testator's death and testimony was introduced to prove this assertion.
Section 1555, O.S.1931, 84 Okl.St.Ann. § 91, provides: "A lost or destroyed will of real or personal property, or both, may be established in the cases provided by law."
Section 1100, O.S.1931, 58 Okl.St.Ann. § 31, provides: "An olographic will may be proved in the same manner that other private writings are proved."
A holographic will requires no witness and is required to be written entirely in the handwriting of the testator. The law contemplates that the identity of the will and the provisions thereof must be determined from the instrument itself.
E. F Smith testified, in substance, that he saw the will but did not read it. He heard R. J. Lee, the maker, read it. The witness was sure that the name of Sophia E. Day was written in the will. He was questioned and answered as follows:
This witness did not testify that any part of the will was written in his presence. The portion of the contents of the will quoted by the witness was obtained from what Lee, the purported maker of the will, told him was in the will.
Witness James Marshall testified in substance that he had never been in Oklahoma until after the death of R. J. Lee; that he lived in Springfield, Ohio; that he did not know Lee and had never seen him. He testified that he roomed at the home of Mrs. Sophia E. Day in Springfield, Ohio, in December of 1934, when Mrs. Day received a letter which she said was from R. J. Lee. The witness saw the letter and an instrument with it, which was claimed to be a will, but he did not know the handwriting. The witness did not read all of the instrument, and did not know the date, and was not sure as to its being written with a pencil. His knowledge was based principally upon what Mrs. Day told him.
Witness, Goldie Day, testified in substance, that she is the daughter of Sophia E. Day and lived in Springfield, Ohio; that her mother left Springfield in December, 1934, and went to Oklahoma; that prior thereto her mother received some correspondence from R. J. Lee in Oklahoma, which contained an instrument called a will; that on a separate piece of paper in Lee's handwriting it said: "I am sending you my will." Witness testified that the instrument was in the handwriting of R. J. Lee; that the will was placed with her mother's letters in a press or cupboard; that after Lee died she came to Oklahoma; that James Marshall, at request of witness, sent to her in Oklahoma the bundle of papers and that the piece of paper her mother received in Springfield, claimed to be a will, was in the bundle received; that it was put in a box on a stand near her mother's bedroom in the R. J. Lee home in Oklahoma City; that when witness returned to Springfield that will was where they had placed it. The witness did not say it was the same instrument about which E. F. Smith had testified.
Henry H. Rauton testified in substance that he saw the will, and heard Lee read it; that it was written with pencil and signed at the bottom "R. J. Lee"; that he could not identify the handwriting of Lee and would not know it if he saw it; that the will was already prepared when he and Mr. Smith went to the home of Mr. Lee; that he has never seen the will since; that he did not believe he would know it if he should see it; that he did not know whether the will read to him was in Lee's handwriting or not.
Other testimony was introduced relative to what Lee had said he intended to do with his property. Mrs. E. F. Smith's testimony at a former hearing was read into the record wherein she stated, in part, that...
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