Maris v. Adams

• Decision Date: 14 March 1914
• Docket Number: (No. 567.)
• Citation: 166 S.W. 475
• Parties: MARIS v. ADAMS.
• Court: Texas Court of Appeals

166 S.W. 475

MARIS v. ADAMS.

(No. 567.)

Court of Civil Appeals of Texas. Amarillo.

March 14, 1914.

On Motion for Rehearing, April 11, 1914.

Rehearing Denied April 25, 1914.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Moore County; D. B. Hill, Judge.

Application by F. Y. Adams for the probate of certain papers as the will of E. Vanlaw, deceased, opposed by C. H. Maris. From a judgment admitting such papers to probate, the contestant appeals. Reversed and rendered in part, and affirmed in part.

Madden, Trulove & Kimbrough, of Amarillo, and Moore, Harrington & Powell, of Dalhart, for appellant. Tatum & Tatum, of Dalhart, and W. Boyce, of Amarillo, for appellee.

HALL, J.

On August 10, 1912, appellee, Adams, filed in the county court of Moore county his application to probate as the last will and testament of E. Vanlaw three papers as follows: (1) An envelope on which was written horizontally the words "Henry Boyce," and across the end the word "Notes." (2) A sheet of paper apparently torn from a small writing tablet, and on which was written the words: "Henry, please except this you and F. Y. Adams for the kindness shown me. E. Vanlaw." (3) A promissory note prepared on a printed blank, a copy of which (the script part being in italics) is as follows: "$14000, Dumas Texas, July the 3, 1911, Fifteen after date after date, for value received, I, we or either of us promise to pay to the order of F. Y. Adams & Henry Boyce Fourteen Thousand Dollars Dollars, with ______ percent per annum thereon from ______ until paid, interest payable annually, and if not paid to bear the same rate of interest and if default is made in the payment of this note at maturity and it is placed in the hands of an attorney for collection then an additional amount of ten percent on the principal and interest of this note shall be added to the same as collection fees. The makers and endorsers of this note hereby severally waive demand of payment, notice of nonpayment, protest and notice of protest and hereby consent that time of payment may be extended from time to time without notice hereof. E. Vanlaw." Notice of application having been given, C. H. Maris, a half-brother of the deceased, appeared and contested. Upon a hearing in the county court these papers were, on May 21, 1913, admitted to probate and ordered recorded as the proven will of said deceased. Maris appealed from this judgment to the district court. Where, upon another trial before a jury, judgment was entered upon the findings of the jury admitting such instruments to probate, and establishing a subsequent instrument dated July 15, 1911, known as the "Geary will," and which is as follows: "Know all men by these presents that E. Vanlaw has wild John Geary Seven Thousand Dollars at My Death the Rest of my property to my bodley airs, written by F. Y. Adams." J. H. Boyce was appointed administrator, etc.

In appellee's brief is set out in part some of the evidence, which we reproduce in substance: E. Vanlaw, the deceased, was at the time of his death about 72 years of age. It appears that he left home when a boy; his nearest relatives being his half-brothers and sisters, with whom he seems to have had little acquaintance. Prior to his settlement in Moore county he seems to have traveled a great deal, and is described by the witnesses as being somewhat peculiar and eccentric. He is said to have been a miser, and frequently did not have enough to eat or sufficient clothes to protect him. In 1905 he abandoned his occupation as a veterinary surgeon and purchased five sections of land in Moore county, stocked it with cattle, and lived there until he was carried to Dalhart for medical treatment about a month before he died. He lived alone most of the time, but during a part of the time had a hired man on his place. For a number of years he had relied largely on the advice of Henry Boyce in the conduct of his business, consulting him frequently, and often referring to him in his conversations. He seems to have had very little to do with his relatives. John Geary attended to the handling and delivery of his cattle, and he usually called on F. Y. Adams for assistance and advice in the details of his daily business affairs. He had been suffering from an incurable malady for many years, and was a regular drinker; his death being ascribed to alcoholic poisoning of the brain. During the spring of 1911 he grew weaker, and his health was apparently failing. One of the witnesses testified that during this time he heard the testator say he did not think he would live very long; that it might have been a good thing to have given his property to orphan children, but "Henry, I expect, deserves it more than anybody else." On July 5, 1911 (if the date of the writing is correct), the deceased sent Hammitt, his hired man, for F. Y. Adams, and had him write what is referred to as the Geary will, which is witnessed by Hammitt and Adams, whereby he bequeathed to John Geary $7,000, stating at this time, so Hammitt and Adams testify, that he already had Adams and Henry "fixed." He died on October 21, 1911. From September 20th to October 21st he was not rational except at intervals. One J. H. Lamb went to the Vanlaw house some time during the month of August, 1912, and in the upper room of the building found in a small box the sealed envelope on which was written "Henry Boyce" and the word "Notes," and advised Henry Boyce of this fact. Boyce visited the place and testified that he found the envelope offered in evidence in the box as described by Lamb; that he opened it and exhibited the contents to the parties who were with him at the time, such contents being the note and other writing offered in evidence for probate. The jury found that the writing on the envelope and that portion inclosed, except the printed portions of the note, were all written by E. Vanlaw; that thereby Vanlaw intended to make a gift to Henry Boyce and F. Y. Adams, effective upon his death; that he was at such time capable of knowing and understanding the nature of the act, and that the note was in existence at the time the words, "Henry, please except this you and F. Y. Adams for the kindness shown me," were written; that the note was what was referred to by the word "this" used in said writing; and that it was not the intention of Vanlaw to revoke this gift by the execution of the Geary will.

The three papers, viz., the letter, the envelope, and the $14,000 note, were not attested, as required by R. S. art. 7857, and clearly cannot be considered a formally written will when measured by that article, even though the animus testandi was apparent, nor can they be probated as a holographic will, because the note, being partly printed, is not within the requirement of R. S. art. 7858, that it shall be "wholly written by the testator." A will cannot be holographic if any part of it is not in the handwriting of the testator. Philbricks' Heirs v. Spangler, 15 La. Ann. 46; Estate of Knox, 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798. Hence, if a printed form has been used, so that the paper consists partly of such printing and partly of clauses written by the testator, no part of it can be admitted to probate as his holographic will. Williams' Heirs v. Hardy, 15 La. Ann. 286; In re Rands' Estate, 61 Cal. 468, 44 Am. Rep. 555. In the case last cited the testator had procured a blank form for a will, in which the formal parts, such as directions with reference to his burial, payment of funeral expenses, and expenses of last sickness, etc., were printed. The opinion of the court quotes the California Civil Code as follows: "An 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" (Civ. Code, § 1277) — and proceeds: "The paper before us was not entirely written by the hand of the deceased. Portions of it were printed. The Legislature has seen fit to prescribe forms requisite to an holographic will, and these forms are made necessary to be observed. It was strenuously urged before us that the portions of the paper which were written by the deceased should be admitted to probate, omitting the printed portions. We are not at liberty to so hold. We should thereby in effect change the statute and make it read that such portions of an instrument as are in the handwriting of the deceased constitute an holographic will. The instrument in its entirety is before us. It was not entirely written by the hand of the deceased." It has been held in several instances that a will written upon a letter head in which part of the date line was printed and the remainder written was void as a holographic will. This holding is based upon the statute that a holographic will must be dated by the testator. In re Billings' Estate, 64 Cal. 427, 1 Pac. 701; Succession of Robertson, 49 La. Ann. 868, 21 South. 586, 62 Am. St. Rep. 672. The requirement as to dating is not found in the statutes of this state; but the authorities are numerous and seem to be without discord that a holographic will not entirely written by the testator cannot be probated. Estate of Martin, 58 Cal. 532; Gregory v. Oates, 92 Ky. 532, 18 S. W. 231; In re Plumel, 151 Cal. 77, 90 Pac. 192, 121 Am. St. Rep. 100.

If we are to consider the parol testimony admitted by the court showing that the letter and $14,000 note were found by Lamb and Boyce in the sealed envelope, and if we hold that the note was by proper reference incorporated in the letter (which question we will discuss later), then, according to appellant's contention, these three papers must be considered and construed together, and we think this would be correct. Grigsby's Legatees v. Willis' Estate, 25 Tex. Civ. App. 1, 59 S. W. 576; Allday v. Cage, 148 S. W. 838. If taken collectively, they do not constitute a holographic will. In re Noyes, 40 Mont. 190, ...