Yount v. Hail (In re Estate of Hail)

• Decision Date: 25 September 1923
• Docket Number: Case Number: 14210
• Citation: 235 P. 916,1923 OK 689,106 Okla. 124
• Parties: In re ESTATE of HAIL. YOUNT v. HAIL.
• Court: Oklahoma Supreme Court

1923 OK 689

235 P. 916

106 Okla. 124

In re ESTATE of HAIL.

Case Number: 14210

Supreme Court of Oklahoma

Decided: September 25, 1923

Syllabus

¶0 1. Wills--Holographic Will Defined. A holographic will is one that is entirely written, dated, and signed by the hands of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed.

2. Same--Validity--Defective Dating. Where a holographic will is offered for probate and the probate is contested on the sole ground that day of the month is omitted from the date, held, that where the will otherwise complies with the statute and there is no question of lack of mental capacity, undue influence, or duress involved the omission of the day of the month from the date will not invalidate the will, and it will be admitted to probate.

3. Wills--Rule of Construction. The statutes of this state require that in construing a will it should be so construed as to prevent a total intestacy, if possible.

4. Same--Validity--Omission of Day of Month. Record in this case examined, and there is nothing to show that the day of the month works any injustice to the parties, and in the absence of such showing, we hold that the day of the month in the date is not of sufficient importance to invalidate the will.

Hulette F. Aby and William F. Tucker, for plaintiff in error.

West, Sherman, Davidson & Moore, for defendant in error.

MAXEY, C.

¶1 This case presents for our consideration the validity of the holographic will of John D. Hail, deceased, which is in words and figures as follows:

"November, 1919.

"In the Name of God Amen:

"I, Jno. D. Hail of Tulsa, Oklahoma, being in good health & sound and disposing mind & memory, but mindful of the uncertainty of life, do make declare & publish this my last will & testament hereby revoking any & all former wills, & do hereby dispose of my estate as follows.

"I bequeath to Bell Hall Hail my wife the home located in Tulsa, Okla., & all lots, lands & buildings, if any, that I possess.

"All stocks & holdings in the Jno. D. Hail Co.

"All money received from Life Insurance.

"All bank stocks.

Five Thousand ($ 5000.) Dollars in Liberty Bonds.

"All bonds not otherwise provided for in this will.

All cash on hand & in bank.

"All stocks and holdings in the Wright Mining & Royalty Co.

"A contract now existing & in the records of the Jno. D. Hail Co. provides at my death, Bell Hall Hail becomes the president of the Company and is to draw weekly the sum of One Hundred & Fifty ($ 150) Dollars in cash. It is my desire that this contract be carried out.

"I bequeath to my daughter Anna Besse Yount Three Thousand ($ 3,000) in Bonds.

"10937 shares in the Domado Lead & Zinc Co. my Cadillac Motor Car.

"8000 Shares in the Tulsa Quapaw Mining & Royalty Co.

"To Free Lee Yount my Watch & Chain.

"To my sister Marh H. Salyer $ 1,000 Dollars in Bonds.

"To my brother Luther F. Hall 10937 shares of stock in the Bethel Lead & Zinc Co. also Seventy-five shares in the Cooperative Gum Vending Co.

"To Mary Louise Salyer my grand niece 5000 shares in the Croesus Lead & Zinc Co.

"If my estate receives any money from accident insurance please use it as follows:

"Pay all my personal indebtedness together with all expense incurred by my death and burial, the remainder to go to Belle Hall Hall.

"I appoint Belle Hall Hail executrix of my estate, and Preston C. West, Counsel and it is my desire that they execute this estate jointly, and neither be required to give bond and they are authorized to refuse to pay any bequest herein made to any beneficiary who interferes personally or causes or influences any one else to interfere with the peaceable execution of this will.

"Signed, Jno. D. Hail.

"November, 1919."

¶2 The sole question to be passed on in this case is, Does the omission of the day of the month in the date to said will invalidate it, and justify the court in denying it probate as the last will and testament of John D. Hail deceased? Counsel for both plaintiff in error and defendant in error have ably briefed the case and cited many authorities in support of their respective contentions. The reading of these authorities cited by respective counsel, as well as independent research on our part, shows that there are two well-defined rules of construction. One may be defined as that line which holds to a strict compliance with the statute, and the other that holds that a substantial compliance with the statute is all that is required. Our statute on wills and succession was taken from Dakota Territory, and so far as we are advised neither the Supreme Court of Dakota nor this court has ever passed on the precise question presented by this record, so that this court is left free to follow either rule of construction. Before determining which rule we will follow, let us look to our own statute and see if there is anything to guide us. Section 11230 of Compiled Statutes of 1921 defines a holographic will as follows:

"A holographic will is one that is entirely written, dated, and signed by the hands of the testator himself. It is subject to no other form, and may be in or out of this state, and need not be witnessed."

¶3 Under the head of Interpretation of Wills we find the following sections: Section 11264, Comp. Stat. 1921, reads as follows:

"A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible."

¶4 Section 11273 reads as follows:

"Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy."

¶5 Section 11295 reads as follows:

"A condition precedent in a will is to be deemed performed when the testator's intention has been substantially, though not literally complied, with."

¶6 These sections of our statutes, and some decisions of our court construing wills generally, will be a safe guide for us to follow in arriving at which rule of construction or interpretation this court should follow. The will above set out was denied probate by the county court of Tulsa county, and the case was appealed to the district court, and the district court admitted the will to probate, and from that order admitting the will to probate this appeal is prosecuted. Counsel for plaintiff in error have ably argued and contended that we should adopt the rule of strict compliance and that as to holographic wills they hold that the will must be "letter and figure perfect," and cite in support of their contention a large number of cases from California, Louisiana, and Montana as supporting the rule of strict compliance or "letter and figure perfect," rule, and we will here incorporate a list of the authorities cited by counsel for plaintiff in error as supporting their contention: Hill v. Davis, 64 Okla. 253, 167 P. 465; Noyes v. Gerard 40 Mont. 190, 105 P. 1017. 26 L.R.A. (N.S.) 1145, 20 Ann. Cas. 366; Walker's Estate, 110 Cal. 387, 30 L.R.A. 460, 52 Am. St. Rep. 104, 42 P. 815; Re Seaman, 146 Cal. 455, 80 P. 700, 106 Am. St. Rep. 53, 2 Ann. Cas. 726; Re Andrews, 162 N.Y. 1, 48 L.R.A. 662, 56 N.E. 529, 76 Am. St. Rep. 294, Robertson's Succession, 49 La. Ann. 868, 21 So. 586, 62 Am. St. Rep. 672; Heffner v. Heffner, 48 La. Ann. 1088, 20 So. 281; Estate of Billings, 64 Cal. 427, 1 P. 701; Estate of Plumel, 151 Cal. 77, 90 P. 192, 121 Am. St. Rep. 100; Re Carpenter's Estate, 172 Cal. 268, 156 P. 464, 1916-E, L.R.A. (N.S.) 498; Re Rand, 61 Cal. 468, 22 Am. Rep. 555; Armant's Succession, 43 La. Ann. 310, 9 So. 50, 26 Am. St. Rep. 183; Baker v. Brown, 83 Miss. 793, 36 So. 539; Re Thorn's Estate (Cal.) 192 P. 19; Re Estate of Mary J. Wolcott, Dec. (Utah) 180 P. 169; Sec. 8347, Rev. Laws 1910; Estate of Martin, 58 Cal. 530; In re Price's Estate, 14 Cal. App. 462, 112 P. 482; In re Noyes' Estate, 40 Mont. 190, 105 P. 1017; In re Anthony Estate, 21 Cal. App. 157, 131 P. 96; In re Carpenter's Estate, 172 Cal. 268, 156 P. 464; In re Vance's Estate, 174 Cal. 122, 162 P. 103; Heffner v. Heffner, 48 La. Ann. 1088, 20 So. 281. The case of Hill v. Davis, 64 Okla. 253, 167 P. 465, above cited, has also been cited by counsel for defendant in error. Both seem to get some comfort from this decision. We may have occasion to refer to this case again, and will not discuss it further at this time. In the case of In re Walker's Estate, supra, the court made the following observation:

"At the outset of this consideration, it is proper to say that the right to make testamentary disposition of property is not an inherent right or a right of citizenship, nor is it even a right granted by the Constitution. It rests wholly upon the legislative will, and is derived entirely from the statutes. In conferring that right, the Legislature has seen fit to prescribe certain exactions and requirements looking to the execution and authentication of the instrument, and a compliance with these requirements becomes necessary to its exercise. As has been said ( In re O'Neil, 91 N.Y. 516, 521): 'While the primary rule governing the interpretation of wills when admitted to probate recognizes and endeavors to carry out the intention of the testator, that rule cannot be invoked in the construction of the statute regulating their execution. In the latter case, courts do not consider the intention of the testator, but that of the Legislature.'"

¶7 In the case of the Estate of Martin, supra, a paper was presented for probate as the last will and testament of deceased as holographic. It was written and signed by the deceased, but bore no date and was not witnessed. Probate was denied. In re Price's Estate, supra:

"The instrument offered for probate was written and signed by the deceased, but the purported date of execution read: 'Dated this day of , 1906'."

¶8 This was denied probate on the ground that it was not dated as required by statute. In the case of Heffner v. Heffner, supra, the trial court rendered judgment annulling the will, holographic in form, of ...