In re Irvine's Estate

• Decision Date: 28 June 1943
• Docket Number: 8341.
• Citation: 139 P.2d 489,114 Mont. 577
• Parties: In re IRVINE'S ESTATE. v. HALL. WILD
• Court: Montana Supreme Court

139 P.2d 489

114 Mont. 577

In re IRVINE'S ESTATE.

WILD v. HALL.

No. 8341.

Supreme Court of Montana

June 28, 1943

Appeal from District Court, Second Judicial District, Silver Bow County; Jeremiah J. Lynch, Judge.

In the matter of the estate of Belle B. Irvine, deceased, wherein Edgar Wild sought to have probated a testamentary writing offered as a holographic will, and the probate was opposed by Willard C. Hall, Jr. From an order refusing to admit to probate the writing offered, the proponent appeals.

Reversed.

JOHNSON C.J., and ANDERSON, J., dissenting.

James P. Kennedy, of Butte, for appellant.

No attorney for respondent.

ADAIR Justice.

Appeal from order refusing to admit to probate a testamentary writing offered as a holographic will. The writing reads:

"Will of Belle B. Irvine

I Belle B. Irvine of Butte Montana being of sound mind and memory do hereby made and declear this as my last will and testament.

After payment of all my just debts and expenses of administration I give, devise and bequeath all the residue of my property of whatever kind and wherever situated to my nephew, Edgar Wild Subject, however to a trust. I appoint my said nephew Edgar Wild, the executor of this will to serve without bond

In witness where of I have hereunto set my hand, this day of May, 1938,

Belle B. Irvine".

The trial court, after hearing had, made an order wherein it found and ordered:

"The court being *** fully advised in the premises finds that said alleged will is entirely written and signed by the hand of the said Belle B. Irvine but does not bear the day of the month of the execution thereof, such part being omitted from the date of the execution thereof.

It is therefore by the court ordered that said instrument, propounded as the last will and testament of Belle B. Irvine, deceased, be, and the same is hereby rejected and denied probate."

The making of the above order constitutes appellant's only specification of error.

Admittedly the writing was entirely written and signed by the hand of the deceased. The one reason assigned by the trial court for rejecting the writing as decedent's last will is that it "does not bear the day of the month of the execution thereof."

The question for decision is: Do the statutes of Montana require that a holographic document making testamentary disposition of property must give, in addition to the year and month of execution, the day of the month, under penalty of being declared null, void and of no effect as a holographic will?

In the statutes of our state referring to holographic wills we find no mention whatever of incorporation in the instrument of the day of the month of the execution thereof.

Section 6981, Revised Codes, defines a holographic will thus: "A holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed."

"Holograph" is defined by Webster's New International Dictionary as, "A document, as a letter, deed, or will, wholly in the handwriting of the person from whom it proceeds and whose act it purports to be." The word is a combination of the Greek word holos, meaning, all, complete, whole with the Greek word graphos or graphein, signifying something written, a writing. Hence the definition of a holographic will set forth by the legislature in section 6981, Revised Codes, conforms to the approved usage of the language and signifies a will wholly written by the testator. The writing must not be contaminated by any stranger's touch. The will must be wholly the handiwork of the testator. The entire will, all the will, must be wholly in the handwriting of the testator himself.

The statutory definition (sec. 6981, supra) contemplates that a holographic will be entirely written by the hand of the testator himself including: (1) the principal part of the writing, the part thereof disposing of that which the testator would have done after his death, i.e., the will proper; (2) the part of the writing wherein the testator gives or indicates the time when the will was made, i.e., the datum clause or the dating part; and, (3) that part of the writing wherein the testator signs or writes his name to authenticate the writing as the testator's will, i.e., the part where signed, the signature.

Thus the legislative definition (sec. 6981) contemplates that a holographic will may have three parts, namely: (1) the will proper, (2) the date, and (3) the signature, and that each of such parts be written by the hand of the testator and no one else.

While the legislature has not specifically defined the word "dated" used by it in section 6981, yet it has declared the rules that are to be employed in interpreting statutes and "to aid in their just application" (sec. 8738) "and these rules and restrictions are obligatory on courts." In re Noyes' Estate, 40 Mont. 190, 199, 105 P. 1017, 1020.

"Interpretation must be reasonable." Sec. 8771, Rev.Codes. "An interpretation which gives effect is preferred to one which makes void." Sec. 8770. "The law respects form less than substance." Sec. 8757. "The law neither does nor requires idle acts." Sec. 8761. "The law disregards trifles." Sec. 8762.

The legislature has also enacted certain statutory rules for interpreting wills among which are the following: "A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible." Sec. 7016. "Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will." Sec. 7022. "The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained." Sec. 7023. "The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative." Sec. 7024. "Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy." Sec. 7025. "A condition precedent in a will is to be deemed performed when the testators' intention has been substantially, though not literally, complied with." Sec. 7047.

"Date" is derived from the Latin word datum meaning given. The English word "date" and its Latin derivative datum have a historical background. In England prior to 1731 instruments of writing, particularly legal documents, such as deeds and wills, were in Latin and that part thereof giving the place or the time or giving both the time and place when and where the instrument was made became known as the datum clause because the Latin form ran datum etc. Thus Datum apud London means, Given at London. The plural of datum is data. The Magna Charta, written in Latin, concludes with the datum clause, or data, or date, viz.: " Data per manum nostram, in Prato quod vocatur Runimede," etc. Thus has the Latin datum clause, being the English "date," acquired a peculiarly appropriate meaning in law and the legislature has commanded that such word "be construed according to such peculiar and appropriate meaning." Sec. 15, Rev.Codes.

Anderson's Dictionary of Law defines the word "date" thus: "The primary signification is the time 'given' or specified,--in some way ascertained and fixed. The time when an instrument was made, acknowledged, delivered or recorded; the clause or memorandum which specifies that fact; and the time from which its operation is to be reckoned." See, also, "Date" in Abbott's Law Dictionary, page 338.

The Century Dictionary and Cyclopedia defines the noun "date" thus: "That part of a writing or inscription which purports to specify the time when, and usually the place where, it was executed. A full date includes the place, day, month and year; but in some cases the date may consist of only one or two of these particulars, as the year on a coin. ***"

The Supreme Court of the United States, speaking through Mr. Justice Sutherland, said: "The word 'date' is used frequently to designate the actual time when an event takes place, but, as applied to written instruments, its primary signification is the time specified therein. Indeed this is the meaning which its derivation (datus--given) most naturally suggests. In Bement v. Trenton Locomotive & Mach. Mfg. Co., 32 N.J.L. 513, 515, 516, it is said: 'The primary signification of the word " date" is not time in the abstract nor time taken absolutely, but, as its derivation plainly indicates, time " given" or specified, time in some way ascertained and fixed; this is the sense in which the word is commonly used. When we speak of the date of a deed, we do not mean the time it was actually executed, but the time of its execution, as given or stated in the deed itself. The date of an item, or of a charge in a book account, is not necessarily the time when the article charged was, in fact, furnished, but simply the time given or set down in the account, in connection with such charge."' Mutual Life Ins. Co. of New York v. Hurni Packing Co., 263 U.S. 167, 174, 44 S.Ct. 90, 91, 68 L.Ed. 235, 31 A.L.R. 102.

In Shaughnessey v. Lewis, 130 Mass. 355, the court said:

"It would be a very harsh as well as unnatural construction of the statute to suppose that the Legislature meant to make void as against the world an instrument which, in one of the various modes in which mistakes in the calendar occur, happens to be misdated. It is common knowledge that at the commencement of the year instruments are frequently antedated a year. It often occurs that such instrument carries with

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