Walsh v. St. Joseph's Home For Aged

• Decision Date: 07 March 1973
• Citation: 303 A.2d 691
• Parties: Joseph T. WALSH and Joseph M. Kwiatkowski, Administrators, C.T.A. of the Estate of James G. Dugan, Deceased, Plaintiffs, v. ST. JOSEPH'S HOME FOR the AGED, a religious corporation of the State of Delaware, et al., Defendants.
• Court: Court of Chancery of Delaware

Page 691

303 A.2d 691

Joseph T. WALSH and Joseph M. Kwiatkowski, Administrators C.T.A. of the Estate of James G. Dugan, Deceased, Plaintiffs, v. ST. JOSEPH'S HOME FOR the AGED, a religious corporation of the State of Delaware, et al., Defendants.

Court of Chancery of Delaware, New Castle County.

March 7, 1973.

Joseph M. Kwiatkowski, Wilmington, for plaintiffs.

James P. Collins, of Metten, Healy & Collins, Wilmington, for defendant corporate and charitable organizations.

Edward Z. Sobocinski, Wilmington, for defendants Edward J. Desmond and Joseph F. Desmond.

SHORT, Vice Chancellor:

Plaintiffs, the administrators of the estate of James G. Dugan, seek instructions regarding distribution under the decedent's will, which has been duly probated. The defendants are religious charities and individuals engaged in charitable work to whom the decedent attempted to transfer certain bonds.

The plaintiffs' uncertainty concerns the effect which should be given to the following clause of the decedent's will:

'All United States Savings Bonds in safety deposit box #559 (sic) Farmers Bank 10th (sic) and Market Sts. Wilmington Del. to be given to the people and places as marked.'

The decedent's will was found after his death in the safety deposit box mentioned in that clause. ^* There were also found in the box a number of envelopes containing United States Savings Bonds, and a handwritten list of the names of various individuals and organizations, each of which name is followed by serial numbers, dates and face amounts corresponding to specific bonds. The list was addressed to three persons designated 'executors,' although none are named in the will itself. There were on each of the envelopes handwritten notations obviously designating the intended recipients of the bonds contained in the envelope. Small slips of paper on which were written further specific notations were secured by rubber bands around each bond or group of bonds intended for a given recipient. All of the individuals and organizations designated are engaged in religious, educational, community or charitable work.

It is not contested that the handwriting on the list, envelopes and small slips of paper was the decedent's, nor can it be seriously disputed that the decedent's intent was that the named charities should receive the designated bonds upon his death. The issue is simply whether the decedent succeeded in translating that intent into a legally effective disposition, by way of either an inter vivos or testamentary transfer. I find that he did not.

If the decedent intended to make his gift under his will, as it is clear that he did, then his writings must satisfy the statutory requirement of 12 Del.C. § 102, which provides that:

'Every will, whether of personal or real estate, must be in writing and signed by the testator, or by some person subscribing the testator's name in his presence and by his express direction, and attested and subscribed in his presence by two or more credible witnesses, or it shall be void.'

Either the writings by which the testator attempted to effect these gifts satisfy the statute, or they do not, and the court cannot ease the requirements of the statute in deference to the testator's intent. 'The question . . . is not what did the decedent intend to do, but what has he done in the light of the statute.' In re Panousseris' Will, 2 Storey 21, 151 A.2d 518.

It is obvious that neither the list, the envelopes nor the small slips of paper, whether taken singly or together, satisfy the statute. They are not signed by the decedent and they are not witnessed. But the defendant charities argue that these writings might yet be effective to invoke the testator's intent under either the doctrine of integration or the doctrine of incorporation by reference.

The doctrines are so closely related as to be frequently confused, but it is clear that they are distinct. Under the doctrine of integration a separate writing is concluded to be an actual part of the testator's will; that is, the will is found to consist of several writings, one of which is the particular paper then at issue. 2 Page The Law of Wills § 19.9; Atkinson on Wills § 79. See In re Panousseris' Will, Supra, at 523, n. 3. On the other hand, in corporation by reference concerns those situations where the contents of the separate writing are given effect as terms of the will, even though the separate writing itself is not considered a part of the papers constituting the will. 2 Page, Supra, § 19.17; Atkinson, Supra, § 80; 57 Am.Jur., Wills, § 233; see In re Panousseris' Will, Supra, at 523, n. 3. A common requirement of both of these doctrines is that the separate writing in issue must have been in existence at the time the will was executed. 2 Page, Supra, §§ 19.15, 19.24; Atkinson Supra, §§ 79, 80; 57 Am.Jur., Wills, § 233. Otherwise, the separate writing would merely represent an attempt to make a testamentary disposition without conforming to the plain and firm requirements of the statute.

None of the dispositive writings at issue here can be shown to have been in existence at the time the will was executed. It is plain that the list of instructions was not, because it refers to bonds issued long after the will was executed. The writing on the envelopes is either undated or dated well after the date of execution. The small slips of...