Newton v. Seaman's Friend Society

• Decision Date: 17 January 1881
• Citation: 130 Mass. 91
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Newton & another, executors, v. Seaman's Friend Society & another

130 Mass. 91

William Newton & another, executors, v. Seaman's Friend Society & another

Supreme Court of Massachusetts

January 17, 1881

Argued November 15, 1879

Worcester. Appeal from a decree of the Probate Court, admitting to probate a book as part of the will of Alexander De Witt.

On February 4, 1879, his will and four codicils were admitted to probate, and William Newton and Charles A. Angell were appointed executors. On June 3, 1879, they presented a petition to the judge of probate, setting forth that the second clause of the third codicil of the will was as follows: "I revoke that part of my will which gives directions for the payment of my legacies, and order and direct my executors or the survivor of them to pay the several legacies mentioned in my wills and codicils, as near as possibly convenient, according to the directions written in a book by Melvin W. Pierce, signed by me, Alexander De Witt, and witnessed by said Melvin W. Pierce;" that the petitioners had the book referred to in their possession, but did not offer it for probate with the will because they did not think it necessary to have it admitted to probate; that the book filed with the petition was the book referred to in said codicil, and was in existence at the time of the making of said codicil; and praying that the same might be admitted to probate as part of the will of Alexander De Witt.

On this petition, after due notice to all parties interested, the judge of probate ordered a decree to be entered, which, after reciting that it appeared that a part of the directions in said book, to wit, the writing on the cover and on certain specified pages thereof, with the exception of certain specified words and figures on two of those pages, were a part of the will of the deceased, namely, of the third codicil thereto, and that the same, being written and signed by the deceased and witnessed by Melvin W. Pierce at the time of the execution of said codicil, was legally executed ordered that the aforesaid parts of the book, and the directions written therein and signed by the deceased, be allowed as part of the third codicil and of the last will of the deceased.

From this decree two of the legatees appealed to this court assigning as reasons of appeal that the book was not a part of the will and codicils; and that it was offered for probate too late.

At the hearing of the appeal, the parties agreed that the facts set forth in the petition of the executors were true; and that the only other facts material to the determination of the case were as follows: On the cover of the book were written the following words, signed by the testator, and witnessed by Melvin W. Pierce: "Directions to my executors in the way and manner I wish all the legacies to be paid as near as possibly convenient. Should I dispose of any of the property herein named before my decease, I order and direct my executors to make up the legacies in stocks or other securities or cash, as they may think best." The book contained several pages of instructions as to paying, in specific property, legacies given in the will and codicils comprising twelve classes or divisions of instruction, each division being signed by the testator and witnessed by Pierce. The book further contained two entries, by way of marginal note and interlineation by the testator after the execution of the third codicil, which consisted of the words and figures excepted in the decree of the Probate Court; and also a list of property not disposed of on the testator's eightieth birthday, at the end of the book and wholly distinct from the instructions, which was not offered for probate nor mentioned in that decree. With these exceptions, the whole book was admitted to probate in the court below, and was in its present form at the times of the making of the codicil and of the testator's death.

The case was reserved by Gray, C. J., at the request of both parties, for the consideration of the full court, and for the entry of such decree as law and justice might require.

Decree affirmed.

W. W. Rice & S. Haynes, for the appellants.

W. S. B. Hopkins, for the appellees.

OPINION

Gray, C. J.

If a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and should be admitted to probate as such. Allen v. Maddock, 11 Moore P. C. 427. Singleton v. Tomlinson, 3 App. Cas 404. Jackson v. Babcock, 12 Johns. 389. Tonnele v. Hall, 4 Comst. 140. Chambers v. McDaniel, 6 Ired. 226. Beall v. Cunningham, 3 B. Mon. 390. Harvy v. Chouteau, 14 Misso. 587.

In Loring v. Sumner, 23 Pick. 98, 102, Mr. Justice Morton said, "There is no doubt that a valid bequest or devise may be made by reference to objects and documents not incorporated in or annexed to the will." In that case the will contained this clause: "I have given to my son, Nathaniel Loring, Jr., one thousand dollars by note for his full part of my estate." It was held that this was a valid legacy of the sum of $ 1000, although the note had no validity as a note, for want of consideration, and had not been made with any testamentary intent. It is true that the amount of the legacy there appeared on the face of the will. But in Wilbar v. Smith, 5 Allen 194, this feature was wanting; the testator, having signed and delivered to four of his children respectively promissory notes which were without consideration and ineffectual as gifts mortis causa, on the same day made his will, by which, after various pecuniary legacies to other children and grandchildren, he gave to the four children "an equal proportion with" the others, "each to have in the same proportion as I give in this will, together with the notes of this date to" the four children; and it was held that the four took specific legacies of the amounts of the notes. And in Thayer v. Wellington, 9 Allen 283, 292, it was said by the court, "A testator may refer expressly to a paper already executed, and describe it with such particularity as to incorporate it virtually into the will, or he may refer to deeds or other instruments, or monuments, or existing facts, to which reference may be had in construing his will."

In Allen v. Maddock, above...