Montague v. Street
| Decision Date | 25 February 1930 |
| Court | North Dakota Supreme Court |
Rehearing Denied July 30, 1930.
Appeal from the District Court of Stark County, Pugh, J.
Reversed.
Crawford Cain & Burnett and Zuger & Tillotson, for appellants.
The mode and requisites in the execution of wills must be in accordance with the statutory requirements. Re Walcott, 180 P. 169, 40 Cyc. 1097; Re Benner, 155 Cal. 153, 99 P. 715; Senn v. Gruendling, 218 Ill. 458; Clay v Layton, 134 Mich. 317, 96 N.W. 458; Tobin v. Haack, 79 Minn. 101, 81 N.W. 758; Re Noyes, 40 Mont. 178, 105 P. 1013; Re O'Neil, 91 N.Y. 680; Murry v. Murry, 6 Watts, 353; Everhart v. Everhart, 34 F. 82.
"Where the date (on a will) is required, a complete date must be given." Rood, Will., 172.
"The formalities expressly provided for by law for the execution of holographic wills must be strictly observed, or the will is void." 28 R.C.L. 161; Re Beird, 48 La. 1089; Hoffner v. Hoffner, 20 So. 281; Roberts's Succession, 49 La. 868, 62 Am. St. Rep. 672, 21 So. 586; Re Anthony, 21 Cal.App. 157, 131 P. 96; Price's Estate, 14 Cal. 462, 112 P. 482; Re Carpenter, 172 Cal. 268, L.R.A.1916E, 498; Re Plumel, 151 Cal. 77, 121 Am. St. Rep. 100, 90 P. 192.
"It (the holographic will) must be entirely written, it must be entirely dated, and it must be entirely signed by him." Re Billings, 64 Cal. 427, 1 P. 701.
The legislature may impose such rules for the probate of wills as it deems proper, and those rules are obligatory upon the courts. Fuentes v. Gaines, 25 La.Ann. 85.
"The date is an important part of every holographic will and consists of the year, month, and day, the omission of any of which is fatal." 1 Am. & Eng. Enc. Law, 30.
"A holographic will must be dated in the handwriting of the testator but the date may be abbreviated as where all are written in figure." Schouler, Wills, 6th ed. § 429.
"A party seeking to maintain a devise must show it by the will itself and no defects in the language used in the instrument can be supplied by parol proof." Burke v. Lee, 73 Va. 786.
"The intention of the deceased that the paper should stand for a last will and testament must be plainly apparent." Mead's Estate, 118 Cal. 4, 62 Am. St. Rep. 244.
Simpson & Mackoff and Dullam, Young & Burke, for respondents.
Substantial compliance with law in dating a holographic will is sufficient. Re Hail, 106 Okla. 124, 235 P. 916; Arendt v. Arendt, 80 Ark. 204, 96 S.W. 282; Weiss v. Short, 181 N.C. 320, 107 S.E. 134; Pilcher v. Pilcher, 117 Va. 356, L.R.A.1915D, 902; Re Jenkins (N.C.) 37 L.R.A.(N.S.) 842.
"The rule in respect to holographic wills as to the manner and method of publication is not so close and severe as where the will is drawn and executed under the direction of an experienced scrivener." Re Livingston, 142 N.Y.S. 831.
"An absolute precision of execution is not expected in the case of a holographic." Re McMahon, 163 P. 669.
No general rule can be laid down as to the sufficiency of a holographic will. 33 L.R.A.(N.S.) 1018, note.
"Leaving aside questions regarding executions, the test to determine whether an instrument is a will, is the presence of testamentary intent, -- the animus testandi." Gardner, Wills, 2d ed. p. 13.
"The animus testandi does not depend upon the maker's realization that the instrument he has executed is a will but upon his intention to create a revocable disposition of his property to take effect after his death." Heaston v. Krieg, 77 N.E. 805, 119 Am. St. Rep. 475.
The petitioners presented to the county court of Stark county a certain instrument, alleging it to be the holographic will of one Mary J. McGillivray Street. The county court admitted the instrument to probate as such will, and from the order and decree of the county court the respondents appealed to the district court. This court made findings of fact and conclusions of law affirming the decree of the county court, denied a motion for judgment notwithstanding the findings or for a new trial, and entered judgment in favor of the petitioners. Frim this order and judgment of the district court the respondents appeal.
The instrument involved in this case was the subject of a prior suit. In McGillivray v. First Nat. Bank, 56 N.D. 152, 217 N.W. 150, we held that the instrument presented did not create a trust of property for the benefit of the persons named therein. We did say:
The interested parties then commenced this action to have the instrument declared to be a will.
The specifications of error all center around two propositions:
First, that the instrument is not executed in accordance with the requirements of the statute so as to entitle it to be termed a will; and
Second, the testimony fails to show the alleged testatrix intended such instrument should operate as a will.
The following is a correct copy of the instrument in dispute:
"Money in Bank to be disposed of
H. E. Montague
10,000
Maria Wheat
10,000
Willetta McGlashan
3,000
Marian McGlashan
3,000
William Wheat
2,000
Charles Wheat
2,000
Fred Wheat
2,000
Watson Wheat
2,000
Florence Griffith
2,000
Mary Jane Griffith
1,500
Richard Griffith June
1,000
Norman Montague
3,000
Richard Montague
2,000
Hamilton Montague
2,000
Mary Currier
1,000
Donald Montague
2,000
and Donald the Ranch.
On the death of Mary J. McGillivray Street this instrument was found in her safety deposit box in the possession of the First National Bank of Dickinson, North Dakota, enclosed in a sealed envelope addressed as follows:
"For R. H. Johnson and Claud Montague"
The record shows that Mrs. Street was a resident of the city of Dickinson, county of Stark, and died on the 22d day of July 1924. For some time previous to her death she had been accustomed to spending some time in southern California and on May 10, 1915, she executed what appeared to be a will written in longhand and apparently signed in the presence of two witnesses. This instrument made numerous bequests and appears to be a complete disposition of all property which she owned.
It is the claim of the petitioners however that this instrument in dispute, termed a holographic will, is a later instrument intended for a will, executed as such and therefore must be admitted to probate as her will. It is admitted the whole of the instrument is in the handwriting of Mrs. Street, but the appellants say the instrument is not executed in compliance with the requirements of our statute, was not intended for a will, and therefore, cannot be considered as a will.
It is to be remembered we are not construing the document for the purpose of determining the intent of the alleged testator as expressed by more or less ambiguous statements in a will. It is not a question of the construction of a will. It is a question whether such instrument is a will, or a mere memorandum, or a document which Mary McGillivray Street may have thought to be a will. Much reliance is placed upon statements which it is said Mrs. Street made before and after the drafting of this memorandum. Testimony was offered by the niece, Mrs. McGlashan, to the effect that Mrs. Street told her "how to make a holographic will, that she herself had everything fixed," and there was testimony by H. E. Montague to the effect that Mrs. McGillivray told him he would find in the safety deposit box the disposition of her property or money. This was offered to show that in 1923 she stated that she had made a will. Prior to her marriage to Mr. Street in 1922 she had made a will, but this was revoked by her marriage. The marriage of a woman revokes a previous will made by her. See § 5658 Comp. Laws. Consequently there was this attempt to show that she must have made a will after the marriage -- the theory being that this memorandum was her will. Just why it is assumed she knew that her marriage to Mr. Street revoked the previous will is not shown.
The general rule regarding the admission of declarations made by the alleged testator covers two classes of cases -- those which are part of the res gestae, such as the declaration to a witness that a certain instrument is his will and that he desires the witness to sign as a witness; and declarations made before or after the execution of the instrument, though not connected with its execution, when it is necessary to show the condition of the testator's mind at the time of the execution. Most of the cases arise upon an attempt to show that the testator said he had not executed the instrument and the rule is applied because such declarations purely hearsay in their nature and which are not against the interest of the testator, cannot be used to vary or change the instrument presented. But the principle is the same in the case where it is attempted to bolster a document by such declarations as is done in the case at bar. To permit the use of these declarations to establish the instrument as a will is in...
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