Montague v. Street
| Citation | 231 N.W. 728,59 N.D. 618 |
| Decision Date | 30 July 1930 |
| Docket Number | No. 5593.,5593. |
| Parties | MONTAGUE et al. v. STREET et al. |
| Court | United States State Supreme Court of North Dakota |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where an instrument is offered for probate as an olographic will, it is essential that the instrument be dated by the testator himself, as under our statute “an olographic will is one that is entirely written, dated and signed by the hand of the testator himself.”
Syllabus by the Court.
The term “date” means the day, the month, and the year; and an instrument offered as an olographic will is not dated, as required by statute, unless it shows the day, the month, and the year when the instrument was executed.
Syllabus by the Court.
Before a document can be said to be a will it must contain language showing a testamentary disposition of property was intended; and in determining whether the document makes a testamentary disposition, resort cannot be had to parol testimony, but this must be determined by the language of the instrument itself.
Syllabus by the Court.
An instrument offered as an olographic will which fails to show the day of the month in the alleged “date,” or which contains nothing showing a testamentary disposition of property, cannot be admitted to probate as an olographic will.
Appeal from District Court, Stark County; Thos. H. Pugh, Judge.
Proceeding by H. E. Montague and others to probate the alleged will of Mary J. McGillivray Street, deceased, opposed by W. Frank Street and others. From a judgment of the district court affirming a decree of the county court admitting the instrument to probate and from an order denying their motion for judgment notwithstanding the findings, or for a new trial, contestants appeal.
Reversed.
Crawford, Cain & Burnett, of Dickinson, and Zuger & Tillotson, of Bismarck, for appellants.
Dullam, Young & Burke, of Bismarck, and Simpson & Mackoff of Dickinson, for respondents.
The petitioners presented to the county court of Stark County a certain instrument, alleging it to be the olographic 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. From 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, etc., v. First National Bank et al., 56 N. D. 152, 217 N. W. 150, 153, 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:
Mary J. McGillivray Street.
Oct. 1923.”
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, N. D., inclosed 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 an olographic 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 an olographic 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 section 5668, 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. She had written that will herself as we have 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 gestæ, 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 fact saying that without these declarations the document is not a will. To thus permit the reformation of a document would be to do violence to the statute of wills. As shown by 5 Wigmore on Evidence (2d Ed.) 408, the application of this rule to wills excludes discussed by the author and dealing with the varying of the terms of a writing. It is as much variance of the terms of a will to add something to it as it is to subtract something from it, or to change the meaning when the meaning of the written portion is simple and plain.
In Throckmorton et al. v. Holt et al., 180 U. S. 552, 21 S. Ct. 474, 482, 45 L. Ed. 663, 673, in the cases contained in class A (cases cited in the footnote under class A) it is held: ...
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Wild v. Hall (In re Irvine's Estate), 8341.
...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. Street, 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. Street, 1930, N.D., supra, the court revie......
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...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, court reviewed at length the authorities and discussed, but refused to follow, the Hail decision, and, under a statute identical with ......