In re Hengy, 5916

• Citation: 53 Idaho 515,26 P.2d 178
• Decision Date: 03 October 1933
• Docket Number: 5916
• Parties: In the Matter of the Estate of FRANK JOSEPH HENGY, Deceased. v. LOUISE WALTER and MADELINE WALTER, as Executrices of the Will and Estate of FRANK JOSEPH HENGY, Deceased, JOSEPH HENGY, MARY HENGY STEWART, CATHERINE ROBERTSON, LILLIE JOSEPHINE TUCKER, LOUISE L. KISSEL, XAVIER HENGY and LOUISE HENGY, Appellants, LOUISE WALTER, MADELINE WALTER, LOUISE WALTER LITCHFIELD, EMILY WALTER ZINN, MARIE WALTER HOWARD and EUGENE GASSER
• Court: United States State Supreme Court of Idaho

26 P.2d 178

53 Idaho 515

In the Matter of the Estate of FRANK JOSEPH HENGY, Deceased.

JOSEPH HENGY, MARY HENGY STEWART, CATHERINE ROBERTSON, LILLIE JOSEPHINE TUCKER, LOUISE L. KISSEL, XAVIER HENGY and LOUISE HENGY, Appellants, v. LOUISE WALTER and MADELINE WALTER, as Executrices of the Will and Estate of FRANK JOSEPH HENGY, Deceased, LOUISE WALTER, MADELINE WALTER, LOUISE WALTER LITCHFIELD, EMILY WALTER ZINN, MARIE WALTER HOWARD and EUGENE GASSER

No. 5916

Supreme Court of Idaho

October 3, 1933

WILLS-OLOGRAPHIC WILL-TESTAMENTARY INTENT.

Letter to deceased's son, written, dated and signed by deceased stating that stepchildren were robbing deceased, and that, if anything should happen to him, his money and property belonged to his own children, disclosed testamentary intent and constituted olographic will (I. C. A., sec. 14-304).

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Appeal from a judgment denying and dismissing a petition for the revocation of the probate of a document alleged to be the last will of Frank Joseph Hengy, deceased. Reversed and remanded.

Reversed and remanded. Costs to appellants. Petition for rehearing denied.

George Erb and Tannahill & Durham, for Appellants.

"If anything should happen to me" is equivalent to "In case of my death." (Cowley v. Knapp, 42 N.J.L 297; Re Estate of Kimmell, 278 Pa. 435, 123 A. 405, 31 A. L R. 678.)

The following cases contain letters that have been declared to be olographic wills and support our contention that this letter is an olographic will: Re Estate of Kimmell, supra; Alston v. Davis, 118 N.C. 202, 24 S.E. 15; Estate of Wood, 36 Cal. 75.

Cox, Martin & Ware, for Respondents.

Where either from the letter itself or the circumstances surrounding its execution it appears that the statement contained in the letter and claimed to be testamentary does not constitute the important or principal portion of the letter, but is a casual statement only, the letter is not a testamentary disposition. This may appear from the letter itself or from the fact that it is only one of many letters sent to the same addressee. (McGee v. McCants, 12 S.C. (1 McCord) 517; In re Branick's Estate, 172 Cal. 482, 157 P. 238; In re Henning's Estate, 186 Cal. 307, 199 P. 39.)

HOLDEN, J. Budge, C. J., and Givens, Morgan and Wernette, JJ., concur.

OPINION

HOLDEN, J.

Frank Joseph Hengy came to the United States from Alsace Lorraine about the year 1872, first locating in Pennsylvania, where he married Josephine Frisch in 1873, later moving to Dallas, Texas. Seven children were born of that marriage and all are living. In 1901 he secured a divorce from Josephine Frisch Hengy, and a year afterward married Louise Frisch Gasser, a sister of his former wife. No children were born of that marriage. The second wife, Louise Frisch Hengy, died testate in March, 1926. By the terms of her will she made her two children by a former marriage, Eugene Gasser and Louise Gasser Walters, sole beneficiaries. Shortly after her will was filed for probate a controversy arose between the Gasser children and the deceased as to the character and value of the community interest of their mother in the Hengy property. To settle the controversy, the deceased purchased the interest of the two Gasser children by giving each one his note for $ 6,000. Later the deceased became dissatisfied with the settlement made with those children, and as a result, wanted the amount of the settlement reduced, which the children refused, and which refusal led the aged man to believe he had been "robbed" in the settlement. September 11, 1926, the deceased executed an instrument claimed by respondents to be his last will and testament. Later, and on December 13, 1927, he wrote his son, Joseph, the following letter:

"Lewiston Dec 13th 1927

"Joseph Hengy Dallas Texas

"Dear Son. I received your cristmass and Newyears cart. but I never got a letter you. since my Last letter I wrote you in which I wrote you to let me know about how much money I took away from Dallas and invested in Lewiston Idaho. I tink you will remember how much I took from the Dallas Bank when me and your Brother Xavier left Dallas. I know you was by me in the Dallas Bank when I took the money. you also know you much I left when I made the trip to the Old Country. about much was send to me. also how much I got from the M.K.T. railroad co. and how much my part Came to me. When your mother died also how much I got from the Old Homestead. also what ever you tink about. all to gather the money I got from Dallas Gene Gassar made me sign two Bank Checks while I was sick with the influenza so I would have to pay to Gene $ 6000oo and to Mrs. Louise Walters $ 6000oo so I like to have you no what they Claim. If any thing should happen to me Joe. you will find all my papers in the Cellar in my iron Box and all my money and property belongs to my own Children. they will find out I have some thing yet to say, that Walter family are robbing me of everything. Let me know what you think about all of It. Well i send my best regards to all.

"Your Father

"F. J. Hengy 1702 Main Str

"Lewiston, Idaho"

That letter was entirely written, dated and signed by the hand of the deceased.

October 7, 1930, Frank Joseph Hengy died, being about 78 years of age. October 28, 1930, the said instrument dated September 11, 1926, was admitted to probate by the probate court of Nez Perce county. May 14, 1931, a petition to revoke the probate of said instrument was filed in said probate court by the children of the deceased, the appellants here. June 5, 1931, the probate court denied and dismissed the said petition. July 29, 1931, the children of the deceased appealed to the district court for Nez Perce county. January 14, 1932, counsel for the respective parties stipulated in writing that the said district court try the second cause of contest set forth in such petition to revoke the probate of said alleged will, and determine whether the said letter constitutes a will. January 18, 1932, the cause was tried by the court, sitting without a jury. May 12, 1932, it was adjudged that said letter was not written with testamentary intent and is not a will and that it does not revoke the said alleged will admitted to probate, as above stated. The appeal is from that judgment.

Appellants seek a reversal of the judgment of the trial court upon the grounds that the court erred in finding and adjudging that the above-quoted letter was not written by the deceased with testamentary intent and that the same is not a will and that it did not revoke the alleged will admitted to probate, and in failing to find upon all of the contents of said letter, particularly that portion of the letter which follows the inquiries of the deceased in relation to the amount of money he brought to Idaho from Texas, the amount he received from the "M.K.T." railroad company and the checks given to Gene Gasser and Louise Gasser Walters, stepchildren of the deceased.

The decisive questions on this appeal are: 1. Does the said letter written by the deceased to his son, Joseph, December 13, 1927, meet the requirements of section 14-304, I. C. A.? And 2. Did the deceased write that letter with testamentary intent?

Section 14-304, I. C. A., reads as follows:

"An olographic will is one that is entirely written, dated and signed by the hand of the testator or testatrix (who may be either married or unmarried). It is subject to no other form, and may be made in or out of this state, and need not be witnessed.

It thus appears that the statute makes but three requirements of an olographic will: First: That it be entirely written by the hand of the testator. Second: That it be dated by the hand of the testator; and Third: That it be signed by the hand of the testator. The letter, therefore, satisfied every requirement of the statute applicable to the proper execution and proof of an olographic will.

Turning now to the question as to whether the above-quoted letter was written by the deceased with testamentary intent, we direct attention to the following cases, which seem to us to be both helpful and instructive in determining the intent of the deceased in writing the letter. In Nichols v. Emery, 109 Cal. 323, 41 P. 1089, 50 Am. St. 43, the supreme court of California says:

"It is undoubtedly the general rule enunciated by the leading case of Habergham vs. Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an instrument is not the testator's realization that it is a will, but his intention to create a revocable disposition of his property, to...