Will of Carter, Matter of

• Decision Date: 26 September 1989
• Citation: 565 A.2d 933
• Parties: In the Matter of the Purported Last WILL and Testament OF Russell M. CARTER.
• Court: United States State Supreme Court of Delaware

Page 933

565 A.2d 933

1 A.L.R.5th 1211

In the Matter of the Purported Last WILL and Testament OF Russell M. CARTER.

Supreme Court of Delaware.

Submitted Jan. 4, 1989.

Decided Sept. 26, 1989.

Henry A. Heiman, of Heiman, Aber & Goldlust, Wilmington, for appellant Elizabeth Galvin.

Roger A. Akin (argued), Daniel R. Losco, of Sawyer & Akin, P.A., Wilmington, for appellee Ruth Ann Necastro.

Before CHRISTIE, C.J., MOORE and HOLLAND, JJ.

MOORE, Justice.

This appeal is from a ruling of the Court of Chancery that a will and codicil (the "1979 will") of the decedent, Russell W. Carter, satisfied the execution requirements of 12 Del.C. § 202 and should be admitted to probate. ¹ The Vice Chancellor found that Carter's technical mistakes in attempting to execute the instruments were cured by the contemporaneous execution of two self-proving affidavits, which were attached to the will and codicil at all times, and which were signed by Carter and his attesting witnesses in the belief that they were properly executing both the will and codicil. ²

We agree that these documents clearly manifest the testamentary intent of Carter and substantially comply with the requirements of 12 Del.C. § 202. When an affidavit is attached to a will or codicil, and signed by a testator in the honest belief that he or she is executing the will itself, that signature satisfies Delaware law under the doctrine of integration. Accordingly, we affirm with directions that the Register of Wills admit the 1979 will to probate.

I.

The basic facts are not in dispute. In July, 1960, Russell W. Carter executed a will, leaving his entire estate to his wife, Mary B. Carter, and designating their two daughters as alternate beneficiaries to share equally if his wife should predecease him. The will was signed by Carter and three attesting witnesses. Its validity is not questioned by any of the parties.

In 1979, Carter had his lawyer prepare a new will in which one of his two daughters was to receive most of the estate to the exclusion of the other daughter. The first four pages of the instrument contained substantive provisions, and the fifth page was a self-proving affidavit. These five pages were stapled together. Carter's lawyer, who prepared the will, mailed it to Carter along with instructions for its proper execution.

On July 2, 1979, Carter invited some neighbors to his house to witness his execution of the will. Among those present were Marion F. Baker, a notary public, and Barbara and Monty Banning, who served as witnesses. The trial testimony established that Mrs. Baker, who had not previously notarized a will, was unfamiliar with the formalities required for the proper execution of such a document.

There was considerable confusion about the places on the fourth and fifth pages of the will where the testator, Carter, and the notary, Baker, were to sign their names. On page four, the notary signed on the line intended for Carter's signature, apparently because the words above it read, "In witness whereof, I have hereunto set my hand and affix my seal....", and the signature line was followed by the word "(SEAL)". Thus, she mistakenly assumed that she was to sign and affix her notarial seal there. In addition, Carter apparently instructed her to do so. The witnesses both signed on the appropriate lines at the bottom of the page. Carter did not sign on the line actually designated for his signature, nor anywhere else on page four. On page five, the self-proving affidavit, Carter, the notary, and the witnesses all signed in the appropriate places. Significantly, the word "testator" appeared only on page five under the line for Carter's signature.

Six weeks later, Carter decided to modify the July 1979 will, and executed a codicil in similar fashion, signing only the self-proving affidavit on the line with the word "testator" typed beneath it. Again, the notary mistakenly signed and affixed her seal on the line where Carter should have executed the document. As before, the self-proving affidavit was properly executed, with the testator, witnesses and notary signing on the appropriate lines.

After Carter's death in March, 1986, the 1979 will and codicil were rejected by the Register of Wills for failure to comply with the requirements of 12 Del.C. § 202. Thereafter, Carter's daughter, who was the principal beneficiary and executrix under the new will, filed exceptions to the report of the Register.

Initially, these exceptions were heard by a Master, who found the documents invalid because Carter had failed to sign the will and codicil properly. The Vice Chancellor, however, reversed the decision of the Register and ordered that the 1979 will be accepted for probate. Carter's other daughter, whose beneficial interest was substantially reduced by the new will and codicil, filed this appeal.

II.

The issue on appeal, whether an improperly executed will may be validated by a properly executed self-proving affidavit, is one of first impression for us. However, the issue has been addressed elsewhere, and the weight of authority holds that a properly executed self-proving affidavit can validate an improperly executed will. In re Estate of Petty, 227 Kan. 697, 608 P.2d 987 (1980); In re Estate of Charry, 359 So.2d 544 (Fla.App. 4th Dist.1978); In re Estate of Cutsinger, 445 P.2d 778 (Okla.1968). But see Orrell v. Cochran, 695 S.W.2d 552 (Tex.1985); In re Estate of Sample, 175 Mont. 93, 572 P.2d 1232 (1977); Boren v. Boren, 402 S.W.2d 728 (Tex.1966).

III.

In construing a will, the intent of the testator is paramount. See In re Kemp's Will, Del.Super., 186 A. 890, 894 (1936); Goldberger v. Goldberger, Del.Ch., 102 A.2d 338, 339 (1954). It is clear from the evidence that Carter intended to revise his will in 1979. In doing so, however, the testament must satisfy the statutory requirements of 12 Del.C. § 202. Clear evidence of intent cannot abrogate the mandatory provisions of § 202, and this Court "has no power to substitute its judgment for that of the legislature as to the essentials of a will." In re Panousseris' Will, Del.Orphans', 151 A.2d 518, 523 (1959).

Section 202 provides that every will must be in writing, signed by the testator, and attested and subscribed in the testator's presence by at least two credible witnesses. 12 Del.C. § 202 (1987). In this case, the document was in writing, and Carter's two neighbors satisfied the statutory attestation requirements by subscribing...