In re Abram's Will

• Decision Date: 08 March 1938
• Docket Number: 27858.
• Citation: 77 P.2d 101,182 Okla. 215,1938 OK 162
• Parties: In re ABRAMS' WILL. v. ABRAMS. ABRAMS
• Court: Oklahoma Supreme Court

77 P.2d 101

182 Okla. 215, 1938 OK 162

In re ABRAMS' WILL.

ABRAMS v. ABRAMS.

No. 27858.

Supreme Court of Oklahoma

March 8, 1938

Syllabus by the Court.

1. The provisions of section 1545, O.S.1931, 84 Okl.St.Ann. § 54 defining a "holographic will" as "one that is entirely written, dated and signed by the hand of the testator himself," are mandatory; and an instrument testamentary in character which is entirely written and signed by the hand of the testator, but is without a date, is not entitled to probate as a holographic will.

2. The omission of a date on an instrument intended as a holographic will cannot be supplied by evidence aliunde the instrument. The only evidence is the will itself.

Appeal from District Court, Ottawa County; Jesse J. Worten, Assigned Judge.

Proceeding in the matter of the last will and testament of Melissa J Abrams, deceased, wherein Earl B. Abrams offered the will for probate and Samuel W. Abrams filed objections to the probate. From a judgment denying probate of the will, the proponent appeals.

Affirmed.

WELCH PHELPS, and GIBSON, JJ., dissenting.

E. C. Fitzgerald, of Miami, for plaintiff in error.

Nelle Nesbitt and Frank Nesbitt, both of Miami, for defendant in error.

HURST Justice.

This cause involves the validity of an instrument offered for probate as a holographic will. It appears that the will in question was found among testatrix' papers after her death. It is testamentary in character and bequeaths to one Kenneth Brown $5; to a son, Samuel W. Abrams, contestant herein, some items of household goods, pictures, and furniture; and to her other son, Earl B. Abrams, proponent of the will, the residue of testatrix' personal estate. The will was witnessed by one witness, Dora Large. It bears no date. It was offered for probate by Earl B. Abrams. Samuel W. Abrams filed objections to the probate of the same for the reasons that (a) it was not dated; (b) that the testatrix was without testamentary capacity at the time of its execution; and (c) that testatrix acted under duress and undue influence exerted by Earl B. Abrams in making the will.

The county court denied probate of the will. On appeal, the district court affirmed the judgment of the county court, and found, from sufficient evidence, that the will was in fact written and signed in the handwriting of the testatrix, that she had testamentary capacity, and that she was free from undue influence, and based its decision solely on the fact that the will is wholly without a date. The parol evidence discloses that the will was executed between July 4 and July 16, 1934.

The sole question argued by the parties is whether the total absence of a date on the face of the will renders it void, or whether that deficiency can be supplied by parol evidence. Our statute, section 1545, O.S.1931, 84 Okl.St.Ann. § 54, defines a "holographic will" as "one that is entirely written, dated and signed by the hand of the testator himself." From this definition it is plain that there are three requisites for a valid holographic will: (a) That it be entirely written by the hand of the testator; (b) that it be entirely dated by the hand of the testator; and (c) that it be entirely signed by the hand of the testator.

The proponent argues that this court is committed to the rule that substantial compliance with the statutory requirements for the execution of wills is sufficient, and that there was substantial compliance here by proof of the date at the trial. He relies upon the decision of this court in the case of In re Estate of Hail, 1923, 106 Okl. 124, 235 P. 916, to sustain this contention. In that case a holographic will dated "November 1919," with the day of the month omitted, was held valid. It will be observed that the will was "dated" although not completely. The authorities are reviewed at length, and no case is cited where, under a statute requiring a holographic will to be dated, such a will was admitted to probate that did not contain the month, day and year. It is the only case to which our attention has been called, or that we have found, that, under a statute like ours, holds that a date on a holographic will is sufficient where only the month and year are given. The decisions from the other states having statutes requiring that such a will be dated are to the contrary. 68 C.J. 720, and authorities cited in note 2; In re Love's Estate, 1930, 75 Utah 342, 285 P. 299; In re Vance's Estate, 1916, 174 Cal. 122, 162 P. 103, L.R.A.1917C, 479; Montague v. State, 1930, 59 N.D. 618, 231 N.W. 728; Heffner v. Heffner, 1896, 48 La. Ann. 1088, 20 So. 281, 282.

In the case of Montague v. State, 1930, N.D., supra, the court reviewed at length the authorities and discussed, but refused to follow, the Hail decision, and, under a statute identical with ours, held invalid a holographic will that omitted from the date the day of the month. The court called attention to the language used in the last paragraph of the opinion in the Hail Case to the effect that it is not to be used as a precedent as to any other holographic will.

The proponent does not cite a case, and we have found none holding valid a holographic will that was wholly without date, under a statute requiring that such a will be dated. The authorities are to the contrary. 68 C.J. 720; 28 R.C.L. 163; Schouler, Wills, Executors and Administrators, 6th Ed., § 429; Thompson on Wills, 2d Ed., § 29. To sustain such a will would be, in effect, to disregard one of the three statutory requirements for a valid holographic will. We cannot hold, under the rule of liberal construction to which we are committed, that there has been a substantial compliance with the statute when one of the three requirements is entirely omitted. The right to make a will is not an inherent or natural right, but rests wholly upon the legislative will. Statutory requirements are mandatory and must be substantially complied with. In re Estate of Hail, supra; Hill v. Davis, 1917, 64 Okl. 253, 167 P. 465, L.R.A.1918B, 687; Davis v. Davis, 1922, 86 Okl. 255, 207 P. 1065; In re Pitcairn's Estate, 1935, Cal.App., 50 P.2d 78; 68 C.J. 414,...