Hessmer v. Edenborn

• Decision Date: 02 December 1940
• Docket Number: 35734.
• Citation: 196 La. 575,199 So. 647
• Court: Louisiana Supreme Court
• Parties: HESSMER et al. v. EDENBORN.

199 So. 647

196 La. 575

HESSMER et al. v. EDENBORN.

No. 35734.

Supreme Court of Louisiana.

December 2, 1940

Rehearing Denied Jan. 6, 1941.

Appeal from First Judicial District Court, Parish of Caddo; Robert J. O'Neal, Judge.

Proceeding by Paul Hessmer and others against Mrs. Sarah Drain Edenborn for a rule to show cause why she should not produce an instrument purporting to be the last will and testament of William Edenborn, deceased, and have it probated. From a judgment for the defendant, plaintiffs appeal.

Affirmed.

Wilkinson, Lewis, Wilkinson & Naff, of Shreveport and Schwarz, Guste, Barnett & Redmann, of New Orleans (Jerry A. Mathews and Prentice E. Edrington, both of Washington, D. C., of counsel), for plaintiffs, intervenors and proponents-appellants.

Wise Randolph, Rendall & Freyer, of Shreveport, and Milling Godchaux, Saal & Milling, of New Orleans, for defendant and appellee.

ODOM Justice.

William Edenborn resided in Louisiana from 1906 until the date of his death on May 14, 1926. He left an estate valued at more than $12,000,000. He had various business connections in St. Louis, Missouri, and on June 30, 1908, while in that city, he executed an instrument now sought to be probated as his last will.

The instrument was prepared for him by the attorney for the St. Louis Union Trust Company, and was left for safe-keeping with the trust company, which was named as one of the executors. The trust company issued to him its ‘ safe-keeping receipt’ No. 1095, which bore the date of the last will, June 30, 1908.

Mr. Edenborn left no forced heirs. After his death, his widow, Mrs. Sarah Drain Edenborn, made application to the district court at Shreveport, Louisiana, where she and her husband resided at the time of his death, to be sent into possession of his entire estate, alleging that he had died intestate. An ex parte judgment was rendered by the court, recognizing her as the widow in community of the deceased and, as such, entitled to all his property, which was alleged to belong to the community. Revised Civil Code, Article 915.

The plaintiffs in the present suit, which was filed long after the widow had been sent into possession, were named as legatees in the instrument dated June 30, 1908, which they allege was the last will of Mr. Edenborn. They ruled Mrs. Edenborn, the widow, to show cause why she should not produce the instrument in court and have it probated as the last will of the deceased William Edenborn. In answer to the rule, Mrs. Edenborn produced in court the instrument, but refused to offer it for probate and registry on the ground that it was not a valid last will. She alleged in the alternative that, if it were a last will, it had been revoked by the testator on February 1, 1919.

The issue presented at the trial was whether, conceding that the instrument was the last will and testament of the deceased, it had been revoked by the testator. The trial judge held that it had been revoked. Plaintiffs, proponents of the will, appealed.

To sustain her plea that the instrument dated June 30, 1908, if as alleged it was the last will and testament of her deceased husband, had been revoked by the testator, Mrs. Edenborn introduced and filed in evidence the ‘ safe-keeping receipt’ issued and delivered to Mr. Edenborn by the St. Louis Union Trust Company at the time the will was deposited with it for safe-keeping. On the face of this receipt there appeared the following writing in pen and ink, which formed no part of the receipt as originally issued:

‘ New Orleans Feb'y 1st 1919

‘ The Will and Testament above referred to I hereby declare void

‘ Wm Edenborn’

It is admitted by counsel for plaintiffs that this inscription was entirely written by the hand of Mr. Edenborn. The safekeeping receipt is on a printed form with blank spaces left for writing in a description of the articles left for safe-keeping. We here copy the receipt found among Mr. Edenborn's papers after his death, including his purported olographic revocation of the will written on the face of it:

Safe-Keeping Receipt

St. Louis Union Trust Company

Trust Department

No. 1095

St. Louis, Jun 30, 1908

This Certifies, That Wm Edenborn has deposited with the St. Louis Union Trust Company, for Safe-Keeping, as follows, viz.: Last will & testament

To be delivered to the depositor on the return of this Certificate.

‘ New Orleans Feb'y 1st 1919

‘ The Will and Testament above referred to I hereby declare void

‘ Wm. Edenborn ’

Non-Negotiable

Non-Transferable

St Louis Union Trust Company

By ( signature not legible )

The writing italicized and enclosed in quotation marks is that which Mr. Edenborn wrote on the face of the receipt more than 10 years after his will was left with the trust company for safe-keeping. The name ‘ Wm Edenborn’ and the words ‘ Last will & testament’ were written in with pen and ink by the officer of the trust company who received the document for safe-keeping. It will be noted that the words ‘ Last will & testament’ written into the receipt appear above the writing of Mr. Edenborn.

It is admitted that Mr. Edenborn intended to revoke the last will dated June 30, 1908, which he had left for safe-keeping with the St. Louis Union Trust Company. Counsel for plaintiffs say in their reply brief filed May 9, 1940:

‘ There can be no doubt that, in using the phrase ‘ above referred to,’ the testator directs us to the written matter above to ascertain what will he was declaring void and, following his direction, we immediately learn, without going any further, that the will which he intends to declare void is the one which (1) on June 30, 1908, (2) the testator himself (3) deposited for safekeeping (4) with St. Louis Union Trust Company.'

And on page 18 of the same brief, counsel say:

‘ It clearly appears from the olograph and the statement of the receipt to which it refers that the intent of the whole instrument was to revoke the will which (1) the testator had deposited (2) for safekeeping (3) on June 30, 1908, (4) with the St. Louis Union Trust Company.’

But counsel say that, in order to make certain his intention to revoke the will dated June 30, 1908, Mr. Edenborn, by inserting in his olograph the words ‘ above referred to’, incorporated by reference into his olograph the safe-keeping receipt which was no written by him, and that in consequence the olograph was not entirely written, dated, and signed by him and is therefore invalid because the ‘ form’ prescribed by the Code was not followed.

Article 1692 of the Revised Civil Code reads as follows:

‘ 1692 (1685). Form of Act Revoking . The act by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments, and clothed with the same formalities.’

To revoke his will, Mr. Edenborn intended to use the form prescribed by Article 1588 of the Code. That article of the Code says that an olographic testament is that which is written by the testator himself, and

‘ In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.’

Counsel rest their case upon the propositions that ‘ An olographic revocation, like an olographic testament, must, under the pain of nullity, be entirely written, dated, and signed by the testator’ ; that, ‘ When the olograph refers to a writing not in the hand of the testator, and such writing completes the testator's thought or has a material effect on the meaning of the olograph, the attempted will or revocation is invalid, since the testator has deliberately incorporated into it writing not in his own hand’, and that ‘ An olograph which is meaningless unless there is read into it another writing not in the same hand, cannot be either a will or a revocation’ .

In sum, what counsel contend is that, while there can be no doubt that Mr. Edenborn intended to revoke that certain will dated June 30, 1908, which he left with the trust company for safe-keeping, yet his attempted revocation fell short of its purpose because he incorporated into his olograph a writing not in his own hand and thereby destroyed its form, and that, in order to ascertain his intent or the substance of his wish, we must look to the trust receipt to which he referred.

According to the settled jurisprudence of this state, an olographic revocation of a last will must, like an olographic will, be entirely written, dated, and signed by the hand of the testator. Otherwise it is invalid. This rule is too well settled to need citation of cases to support it.

Unquestionably the substance of a testator's wish must be expressed in words written by him if the will is olographic in form. The same is true of an olographic revocation. Where a written instrument purporting to be a last will expresses the intent and substance of the testator's wish but is vague, indefinite, obscure, or ambiguous in the description of a legatee or in the description of the thing bequeathed or of any object referred to in the will, extrinsic testimony is admissible to make clear that which is uncertain. Revised Civil Code, Articles 1714, 1715; Succession of Pizzati, 141 La. 645, 75 So. 498; Sisters of Charity v. Emery, 144 La. 614, 81 So. 99; Succession of Tilton, 133 La. 435, 63 So. 99.

In these cases and many others like them it was conceded or assumed that the writing itself expressed the substance of the testator's wish or his intent. In Succession of Tilton, supra, the testatrix made a bequest to ‘ Home for Insane’ . But the will itself did not specifically state what ‘ Home for Insane’ was to be the object of her bounty. The court held that parol testimony was admissible to show what...