Summary
In Turnage v. Stevens, 208 Miss. 734, 45 So.2d 571 (1950) the court was considering a writing in the form of a letter, the body of which appeared above the signature of the purported testatrix, and below the signature there was an additional statement which was not followed by a signature.
Summary of this case from In re Estate of KingOpinion
No. 37444.
April 10, 1950.
1. Wills — holographic — unsigned postscript to letter.
An unsigned postscript cannot be considered as an effective part of a letter presented as a holographic will, since our statute requires that holographic wills shall be subscribed by the testator or another for him, which means that nothing of a dispositive nature may be considered which appears after and beneath testator's signature. Sec. 657 Code 1942.
2. Wills — holographic — letter expressing future purpose.
A letter expressed a desire to give to addressee an undivided interest in named land but all the several expressions of the letter, taken with the surrounding circumstances, disclosed a purpose to make a testamentary disposition to that effect sometime in the near future rather than in the immediate present: Held that the letter was not to be admitted to probate as a holographic will.
3. Wills — evidence — surrounding circumstances.
Upon the question whether a letter presented for probate as a holographic will was intended by the writer as such it was competent to show that after the date of the letter, the writer was engaged in correspondence with addressee concerning the terms of a proposed will which the addressee was himself to draw, and which when drawn and redrawn was not entirely satisfactory to testatrix and was never signed by her.
Headnotes as approved by Roberds, J.
APPEAL from the chancery court of Leflore County; R.E. JACKSON, Chancellor.
Alfred Stoner and N.C. Brewer, Jr., for appellants.
Assuming that the letter is testamentary in character, it will be observed that that part of the letter which pertains to the death of the testatrix is embraced in the unsigned postscript. That part of the letter above the signature "Aunt Kate" relates to an intention to vest an interest at a later date. We call attention of the Court to the following words which appear above the signature, "I want to say right now, that I want to give you Aldridge's interest in Runnymede I want you to begin fixing things that you may get the rent for 1947". Definitely, these words do not constitute a devise to take effect at death and they merely express a desire that Barksdale Stevens prepare papers for the vesting of the title during life. As definite proof of this fact, it was the intention of Mrs. George that the papers or whatever "fixing of things" that she thought necessary would be in time for him to get the rent for 1947. These words do not relate to death. In fact, the words of the letter preceding the signature "Aunt Kate" relate to life, rather than death, in that she is preparing to purchase four lots and expresses her intention of hiring a surveyor. We may assume that if the papers had been prepared, or to be exact "if the things had been fixed" Mr. Stevens might have received the interest known as Aldridge George's one-eighteenth interest in the Runnymede Plantation and one-eighteenth of the rent for 1947. The "fixing" was to be done by Mr. Stevens, and if such documents had been prepared and if they had been satisfactory when prepared, and if Mrs. George had signed the papers, this great nephew of her deceased husband, might have received the title of the one-eighteenth interest and might have collected the rent thereon for the year 1947 during the lifetime of Mrs. George, who signed the letter "Aunt Kate". We submit that the facts above stated are conclusive of the proposition that the words above the signature are not testamentary in character. Not only that, but the remainder of the letter pertained merely to social matters, in that she desired that he and Leona come to see her when most convenient, the remainder of the letter discussing the four lots that Mrs. George desired to purchase after a survey. In addition, the letter was mailed, which as has been held by this Court, is evidence of the fact that it was not intended as a will.
We come now to the unsigned postscript which is as follows: "If I drop dead which I hope I will do, you have this letter to prove your ownership. Your new place of business has me guessing". Assuming for the sake of the argument that the letter is testamentary in character, it will be observed that there is no signature under the postscript.
Our statute provides in part as follows: "And, moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two or more credible witnesses in the presence of the testator or testatrix." Code 1942, Sec. 657.
We submit that our Court has recently passed upon the meaning of the word "subscribed" from which decision we quote in part as follows: "The power of transmitting properly by will is a power to be exercised solely under the statute law, and only by compliance with the requirements of the statute may an heir be deprived of his inheritance. It is the intention of the legislature which controls, not that of the testator, and a will which in its execution does not conform to the provisions of the statute will be denied probate, notwithstanding the intention of the testator. It is immaterial that the requirements of the law in their application in particular cases may defeat the actual intention of a person as to the disposition of his property. . ..
"Where the statutes provide that a valid holographic will be signed at the end of the writing, or be `subscribed', the requirement must be fulfilled, citing among other cases that of Better v. Hirsch, 115 Miss. 614, 76 So. 555. . . .
"The Court further observed, however, in the case of Better v. Hirsch, supra, that: `The will in the present case is not probated as a holographic will. A holographic will would have to be `subscribed' by the testatrix. Our court has followed those authorities which make a distinction between the words `signed' and `subscribed'.' . . .
"In Black's Law Dictionary, 2nd Ed., it is stated that the word `subscribed' means `In the law of contracts, to write under; to write the name under; to write the name at the bottom or end of a writing.' And, in 2 Bouv. Law Dict., Rawle's Third Revision, p. 3171, the word `subscribed' is defined to mean `To write underneath'; the word being derived from the two latin words `sub' meaning under, and `scribo' to write. . . .
"At any rate, we are of the opinion that what is said in the cases of Armstrong v. Walton and Better v. Hirsch, supra, is persuasive as to the meaning of our statute, and would justify our Court in now aligning itself with the view entertained by many other courts that a holographic will should be `subscribed' even though the language employed by our Court in those cases may not have been necessary to the decision of the issue then before the Court. . . .
"Nevertheless, to sign one's name to a document would ordinarily mean to sign that which has gone before, and this would be true as to signing it with one's own hand or giving consent to something written, that is to say, by signing what precedes, and especially so where the same sentence of our statute has used the word `signed' in reference to wills in general, and the word `subscribed' in reference to those wholly written by the testator or testatrix." Baker v. Baker's Estate, 199 Miss. 388, 24 So.2d 841.
We suspect that the chancellor considered the unsigned postscript as if it were above the signature. The final decree in this cause merely adjudged that the letter was a will, resulting in its admission to probate. It is definite that this elderly lady thought of dying after the letter was written, at least the chancellor erred in permitting the contrary effect to be added by parol. In fact, she expressed the desire to die. If she had signed the postscript, appellee would have made out an entirely different case. We submit that under the holding of the Baker case above cited, that which is below the signature is immaterial. The matter is entirely governed by statute, and as was said by our court in the Baker case, "It is the intention of the legislature which controls, and not that of the testator".
We have searched diligently for authority specifically deciding the effect that an unsigned postscript has upon that which is above the signature. We have found only one authority directly in point on the effect of such postscripts, the opinion of the court being in part as follows: "The alleged will offered for probate by appellant consisted of a statement in the nature of a postscript to a letter written by Charles S. Borchers to his father from Camp Beauregard, La. The statement itself was not signed, but appeared after the signature of the deceased, and is as follows: "Papa, if I die for my country, I want you to receive my insurance money. Goodbye."
"It is insisted by appellant that the unsigned statement of Charles S. Borchers, in the nature of a postscript to a letter written by him to his father, is a holographic will, and that the court erred in ruling otherwise. Section 8012 of Kirby's Digest requires that — `Every last will and testament of real or personal property . . . must be subscribed by the testator at the end of the will, or by some person for him, at his request.'
"This court declared in the case of Owen v. Douglas, 121 Ark. 448, 181 S.W. 896, that the purpose of the statute in making this requirement was to provide against fraud, citing in support of the construction given the statute 40 Cyc. p. 1105.
"It being necessary to the validity of a holographic will that the signature of the testator appear at the end thereof, the judgment below was correct, and is affirmed." Borchers v. Borchers, 145 Ark. 426, 224 S.W. 729.
We submit that the Baker case above cited is directly in point on the proposition that that which is below the signature is immaterial and that the Arkansas case above cited is also directly in point relative to the effect of unsigned postscripts, both cases being to the same effect. H. Talbot Odom and Stevens Cannada, for appellee.
We submit that the language of the body of the letter is clear and unambiguous and shows a desire and intent on the part of Mrs. George to give that interest in Runnymede Plantation formerly owned by her deceased son, Aldridge. It is true that the letter carries a postscript, reading as follows: "P.S. If I drop dead, which I hope I will do, you have this letter to prove your ownership."
Certainly, the postscript, although not in itself subscribed again by Mrs. George, sheds light and meaning upon the letter as a whole. This postscript does not dispose or undertake to dispose of any property. It is not dispositive but it could be said to be confirmatory of the gift contained in the body of the letter and to shed light upon the testamentary character of the letter as a whole. The postscript without question is wholly in the handwriting of Mrs. George. It immediately follows her signature. The original letter, together with the postscript, is upon one sheet of paper upon which Mrs. George wrote on both sides. It is captioned, "Beeville, Texas March 17, 1947." It identifies the place where written and the time or date. It is addressed in the form usually employed by Mrs. George in writing letters to Barksdale Stevens. It is signed in her customary method, "Aunt Kate". The letter, therefore, has been subscribed in literal compliance with the statute and the ruling in the Baker case.
The quoted statement from the postscript need not be relied upon by us as granting or devising any property whatsoever. It manifestly refers to the gift already made in the letter. It is certainly part of the res gestae. It shows that Mrs. George was contemplating death. She enjoins upon Barksdale that if she drops dead that he will have the letter "to prove your ownership". The word "ownership" could refer only to the one specific piece of property mentioned in the letter, to wit, the undivided interest which her deceased son, Aldridge George, formerly had in Runnymede Plantation. It is not denied that Aldridge did have an undivided interest in Runnymede Plantation in Leflore County, Mississippi, and cannot be denied. It is not required that an accurate description of a piece of property devised in a will should be incorporated in the will itself. That is certain which can be made certain, and in this instance the exact interest of Aldridge George was well known, and if there is any doubt about it, it can be made certain by the public records and oral testimony.
The use of the word "give" in the letter is in the same sense that the word "give" was meant in the case of Estes v. Estes, 27 So.2d 854. The holographic will there was very brief and employed the language: "I give to my sister, Caroline Wallace Estes everything I own," etc.
Construing that language the Supreme Court, by Mr. Justice McGehee, now Chief Justice, said: "It is contended by the appellant, however, that the word `give' in the instrument is used in the present tense, and shows that therefore the alleged testatrix intended to make a gift of her property to her sister during her lifetime, either in fee simple or in a fiduciary capacity `without bond'; and that the instrument is insufficient as a deed of gift since the same was not delivered. However, we do not think that the use of the word `give' as the only dispositive word therein would necessarily denote an intention to vest the title of the property in the donee in praesenti. Sartor v. Sartor, 39 Miss. 760."
The authorities generally reflect a liberal construction of holographic wills. See the case of Re Irvine, (Mont.), 139 P.2d 489, 147 A.L.R. 882.
In Sec. 680, Mr. Page in his work on Wills shows that the declarations of a testator made at the time or contemporaneous with and explanatory of the facts of execution are always competent. There is no law that requires a statement or declaration of a testator to be written or signed or subscribed. It could be an oral declaration. In the case at bar the postscript is certainly a declaration of testamentary intent and can be considered by the Court in explanation of the letter and shedding light upon its true intent and purpose and meaning.
As hereinabove stated, if there is any ambiguity or doubt as to the meaning of the dispositive words in the letter "parol evidence is competent to show whether or not an instrument was intended to be of testamentary character, where its meaning in that behalf is not clearly shown on the face thereof". Kinard v. White et al., 175 Miss. 480, 167 So. 636; Prather v. Prather, 97 Miss. 311, 52 So. 449; Sullivan v. Jones, 130 Miss. 101, 93 So. 353.
The proof or parol testimony is undisputed in this case that Mrs. George intended to make the devise reflected by the letter offered for probate, and the faithful and intelligent cook or maid of Mrs. George, Lillian Rupe, recalled and testified: "And I was in the room with her at the time she was writing a letter to Mr. Barksdale Stevens — I can't remember the exact date of the letter, whether it was March 17, 1947 or not, but she told me she was writing Mr. Barksdale Stevens a letter and that she was putting in that letter the statement that she wanted him to have Runnymede Plantation."
Most of the depositions were taken in the presence of counsel on both sides and on oral examination at the time. The deposition of Lillian Rupe was taken on interrogatories and cross-interrogatories.
We earnestly contend that even though the postscript is not regarded in itself as a part of the will, as expressed in the body of the letter, nevertheless it is relevant and, in fact, conclusive proof in itself that Mrs. George contemplated death and was making the devise to take effect at her death. It is admitted that the postscript is in the handwriting of Mrs. George.
Therefore, if the postscript is merely considered or introduced not as a part of the will but as a letter written by Mrs. George to aid in the construction of the will, then, inasmuch as there is no substantive law requiring that a letter be subscribed before it can be introduced as evidence, the authenticity of this postscript can be proved by establishing the handwriting of Mrs. George, and thus its evidential value will be just as good as though actually signed by her. Let us suppose, for illustration, that Mrs. George had signed the letter in question without any postscript and then placed it in an envelope on the back of which she did note in her own handwriting the statement that if she should drop dead, as she hoped she would do, the enclosed letter would be evidence of her gift or devise to Barksdale Stevens, then would anyone say that the statement on the envelope containing the letter could not be considered by the court in interpreting the letter itself? The fact that she made the statement in the postscript is all the more reason to consider it genuine and identifies the statement as more closely related to what is said in the body of the letter.
The statement in the letter that "I want you to begin fixing things that you may get the rent for 1947" does not qualify or restrict the first portion of the sentence, "I want to say right now that I want to give you Aldridge's interest in Runnymede". It is consistent to believe and to conclude that Mrs. George not only wished to vouchsafe to Barksdale the one-eighteenth interest which Aldridge formerly owned in Runnymede after her death and as a part of the distribution of her estate, but that she wished to add to that gift by also vouchsafing to him whatever profit or rent she expected to obtain in 1947 in event it should happen that the rent, so-called, should be paid prior to her death. Certain it is that the language as a whole does not declare that she wanted to give Aldridge's interest in Runnymede prior to her death. Her statement that "I want to say right now" was simply a statement that she wished to convey the information to Barksdale that he was to have Aldridge's interest in Runnymede at her death, in strict accordance with her oft-repeated wish.
We wish also here to direct the Court's attention to the fact that on the trial of an issue devisavit, the Court does not have before it the proper interpretation of the will. We are here concerned with only one question, and that is whether the language employed relates to a transaction between the living or is to take effect at death and therefore is testamentary. If there is any ambiguity or doubt in the construction of the language, then all of the authorities hold that parol testimony is admissible. Some of them point out that it is admissible not for the purpose of contradicting or adding to or taking from the language, but is always admissible to show "whether or not the maker intended it as a will". As stated by some of the authorities, if the donor executes a paper clearly evidencing his intention to make a gift, using words of doubtful and uncertain import as to whether a gift in the present or testamentary is intended, then the oral evidence is admissible. This is a doctrine laid down in the textbooks, such as Schouler on Wills and Alexander's Commentaries on Wills. If the language employed is held to relate to a transaction between the living, then the solemn wish and desire of Mrs. George will be defeated. If this language is construed as testamentary, then her solemn wish and desire will be fulfilled. She certainly had the right to make the gift in contemplation of death, and if the letter is testamentary, her wishes will be respected and made effectual.
This question was considered by the Texas court in Adams v. Maris, 213 S.W. 622, wherein the opinion cites or quotes many of the authorities.
Even though Mrs. George intended at a later date to execute a more formal will, disposing of all of her property, nevertheless she did not execute a subsequent, formal will and there is no evidence that she revoked the devise contained in the letter. Even though Mrs. George had intended in good faith to make a later will, nevertheless it is clear that she intended the letter to protect Barksdale Stevens until she made that more formal will, or if she should die without doing so. This conclusion is supported by the Kentucky case of Nelson v. Nelson, 30 S.W.2d 893. In that case the testator executed a paper that began as follows: "Until I can have my will written the following are my wishes in regard to my estate. I want", etc.
The will was contested on the grounds that the writer did not intend that this particular document should be his will, that it was not written with testamentary intent animo testandi.
The Court held that the paper executed by the writer is not merely the expression of an intention on his part to have a will written in the future when he would dispose of his property but that it also expressed his intention that the paper should operate as a testamentary disposition of his property in the event he should die before he should have a will formally prepared. The Court stated: "The paper is to act instead of a will until his will is written, and that which is intended to act in lieu of a will becomes itself a will". See also Barnes v. Horne, (Tex.), 223 S.W. 859.
The authorities we find are in accord that a letter in the nature of a will or an instrument offered for probate as a will, that is wholly written and subscribed by the testator, is not affected by a postscript or codicil which is unsigned. In the case of Fenton v. Davis, 187 Va. 463, 47 S.E.2d 372, the actual will attempted to be probated in this case was as follows:
"1-31-47
"To Whom it may Concern
I will
All my personal property and insurance to my mother Corra Lee Warren, 9016 Cottage Toll Road.
Norfolk, Virginia Cortelyou H. Warren
P.S. Real estate and government retirement insurance I.B.E.W."
In this case the Court pointed out that the postscript was an attempted codicil, since it is presumed that the writer signed her name before she wrote the postscript, and stated as follows: "The incomplete sentence appearing on the instrument after the signature does not affect the validity of the disposition of the property named and described in the will above the signature. In other words, if a codicil is not properly executed, it is invalid, but its invalidity does not affect the validity of a will which has been executed in the manner prescribed by statute." See also Parrott v. Parrott's Administratrix, 270 Ky. 544, 110 S.W.2d 272; Lucas v. Brown, 187 Ky. 502, 219 S.W. 796; In re Bogart's Estate, 96 Pa. Supp. 26; Jenkins v. Muldrow, (Cal.) 184 P.2d 165; Pilcher v. Pilcher, (Va.) 84 S.E. 667, L.R.A. 1915D 902.
In this case we are to decide whether or not the following letter is a will:
"Beeville, Texas, March 17, 1947
"Dear Barksdale, —
"Yours just received I thank you so much Honey for all you have done for me I want to say right now that I want to give you Aldridge's interest in Runnymeed I want you to begin fixing things that you may get the rent for 1947. I want you Leona to come when most convenient for you. Reese has not called me about the house yet but there is no special rush as I have paid the rent for this month in advance, he is to tell him I want the whole 4 lots will get a surveyor to run the lines as soon as the weather permits. I think Leona will be fine the Baptist ladies will welcome her. Love for all.
"Aff'ly "Aunt Kate
"P.S. If I drop dead which I hope I will do, you have this letter to prove your ownership. Your new place of business has me guessing."
The letter was propounded as a will in the Chancery Court of Leflore County, Mississippi, by Barksdale Stevens, to whom it was addressed. The court peremptorily instructed the jury to find it to be a will, which was done, and it was admitted to probate. Contestants appeal.
The answer depends upon two questions: First, whether the postscript can be treated as a dispositive part of the letter; and, second, if not, whether the letter is testamentary in character and effect.
We now decide the first question. The writer of the letter was Mrs. Kate Duncan George, who resided at Beeville, Texas. The recipient was Mr. Barksdale Stevens, an attorney, who lived at Houston, Texas, some one hundred and seventy-five miles from Beeville. The letter was sent through the mail. It was written entirely in the handwriting of Mrs. George. It will be noted there is no signature underneath the postscript. Is the postscript a dispositive part of the letter under our statute and decisions?
Section 657, Code 1942, requires all holographic wills to be "subscribed" by the testator or testatrix.
In Armstrong v. Walton, 105 Miss. 337, 62 So. 173, 46 L.R.A., N.S., 552, Ann. Cas. 1916E, 137, this Court held that, while an attested will does not have to be signed at the end or subscribed, the statute requires that holographic wills be "subscribed".
In Better v. Hirsch, 115 Miss. 614, 76 So. 555, 556, this Court said: "A holographic will would have to be `subscribed' by the testatrix. Our court has followed those authorities which make a distinction between the words `signed' and `subscribed.'"
Baker v. Baker's Estate, 199 Miss. 388, 24 So.2d 841, involved the exact question we are now considering. The provisions of that instrument were, without question, dispositive and testamentary in character but they appeared beneath the signature of the testatrix. The opinion expressly noted that our statute provides that an attested will need only be "signed" as such but that an holographic will must be "subscribed" — that is, signed underneath, and that no unsubscribed provision could be effective as a will. It referred to Armstrong v. Walton and Better v. Hirsch, supra, and cited texts holding that where the statutes require the will to be subscribed, that nothing which appears beneath the signature can be treated as a part of the will. The opinion quoted Black's Law Dictionary, 2nd Ed., as defining the word "subscribed" as meaning to write the "name under . . . at the bottom or end of the writing." To this, we might add that Webster's International Dictionary, Second Edition, defines the word postscript as "A note or series of notes appended to a completed letter, book or the like, usually giving an afterthought or additional information."
In Borchers v. Borchers, 145 Ark. 426, 224 S.W. 729, Charles S. Borchers, a soldier, wrote his father from Camp Beauregard, La., a letter, to which he added this unsigned postscript: "Papa, if I die for my country, I want you to receive my insurance money. Good-bye." It was insisted that this unsigned postscript constituted a holographic will. The Arkansas statute, Section 8012 of Kirby's Digest, provided that "Every last will and testament of real or personal property . . . must be subscribed by the testator at the end of the will, or by some person for him at his request." The Arkansas Court held this provision ineffective as a will because Charles Borchers' signature was not subscribed thereunder. It is true the Arkansas statute requires the instrument to be subscribed at the end, and our statute only requires it to be subscribed. However, the provision for subscribing at the end, as contrasted with the requirement merely that it be subscribed, without expressly stating at the end, is directed to the space which may be left between the signature and the last word above it. The two statutes mean the same thing in their requirement that the will must be subscribed.
It is, therefore, settled in Mississippi that (Hn 1) holographic wills must be "subscribed by the testator, or another for him. Nothing can be effective which appears after and beneath such signature. "The purpose of such requirement is not only that it may thereby appear on the face of the instrument that the testamentary purpose therein expressed is completed, but also to prevent any opportunity for fraud or interpolations between the written matter and the signature. The position of the signature at the end of the will furnishes in itself internal evidence of finality or completion of intent." 57 Am. Jur. 213, Section 267. It is not the prerogative of this Court to pass upon the wisdom or unwisdom of the statute. However, were we permitted to do so we would be compelled to recognize that the experiences of history justify the wisdom of the provision. Since the law first recognized the right of one to dispose of property by will, living people have tried to execute wills for those who have departed this life.
We, therefore, cannot treat the postscript here in question as any part of the dispositive provisions of this letter.
The second question is whether, aside from this postscript, the letter is testamentary in character and effect.
An understanding of the background will be helpful in our endeavor to correctly solve this question. Runnymede Plantation is located in Leflore County, Mississippi, and was owned by General J.Z. George. All of the owners of that Plantation acquired their interests from General George. Mrs. George, at the time she wrote this letter, was the owner of a one-eighteenth and a one-ninth undivided interest in that plantation, and all of the personal property used in connection therewith, including any money on hand produced through the operation thereof. The plantation consisted of nearly four thousand acres, of which approximately three thousand acres were in cultivation. The one-eighteenth interest was acquired by Mrs. George from her only son, Aldridge George, who died in December, 1946. Mrs. George owned other property in Leflore County, Mississippi, in Tennessee and in Texas.
Barksdale Stevens was not related by blood to Mrs. George. He is a great nephew of the husband of Mrs. George, who departed this life many years ago. The contestants are blood relatives and the heirs at law of Mrs. George. At the time she wrote the letter, she was between seventy-five and eighty years of age.
Barksdale Stevens was a prominent lawyer in Houston. Texas. It is shown he was very kind and considerate of Mrs. George. He advised with her about many of her matters, although she had an attorney at Beeville, who also advised with her, and seems to have actually attended to most of her matters needing attention by an attorney. There is no question that Mrs. George was very devoted to Barksdale Stevens, and he to her. Nor is there any question that she intended that he should share in her estate. However, the testimony of the witnesses on behalf of proponent shows that at different times she had varying ideas of the value and the specific type of property she desired to give him. Some testified she said at one time she wanted him to have certain real estate in Beeville; others that she told them she wanted to give him a certain amount of money; others that she desired him to have Aldridge's part of Runnymede and yet others that it was her desire to give him not only the one-eighteenth interest of Aldridge but also the additional one-ninth she acquired through her deceased husband, an aggregate of three-eighteenths interest in the Plantation. So we are confronted with the fact that Mrs. George intended that Barksdale Stevens should share in her estate. And it is our duty, as it is our desire, to effectuate that intent if it can be legally done. However, it is not her intent but what she did which must control. We cannot give effect to her intent unless she did so herself. That involves the definite, specific question whether the terms of this letter are testamentary and dispositive in character, constituting a vehicle for transmission to him of title to the designated property, or whether the letter expressed an intent with the purpose to later effectuate it.
(Hn 2) In the first place, disregarding the postscript, as we must do, it is clear the letter was not written in contemplation of death. She was anticipating a visit from Mr. and Mrs. Stevens; she was expecting to enter upon negotiations for the purchase of four lots; she was looking to the future.
Again, after expressing a desire to give Mr. Stevens, one-eighteenth interest in Runnymede, she said "I want you to begin fixing things that you may get the rent for 1947". This clearly shows she intended to execute some paper in the future to effectuate her desires. The expressions disclose an intent and purpose to do something else in the future — they are not vehicles for effective transfer of title. They do not dispose of property. They merely express an intent to give Mr. Stevens property, and request that he "fix" papers to carry that intent into effect.
And, to demonstrate clearly that Mrs. George did not consider that she had executed a will, the record discloses that, after the letter in question was written, she requested Mr. Barksdale Stevens to prepare a will for her. He did that, but it appears that some of the provisions thereof to beneficiaries other than Mr. Stevens were not satisfactory to her; whereupon, in an earnest, conscientious effort to comply with the wishes of Mrs. George, Mr. Stevens prepared another will and mailed it to her, together with a letter explaining the changes which had been made. All of this was a short time before the death of Mrs. George on September 20, 1947. Apparently this will was not satisfactory to her and she never executed it. She died intestate. It is significant, as bearing upon whether she considered the letter under discussion to be a will, that this prepared form, in its provisions to Barksdale Stevens, did not coincide with the letter of March 17, 1947. In that form he was given a three-eighteenth interest in Runnymede and in the personal property used in connection therewith, "and also all of my interest in any crops thereon at the time of my death", apparently an effort to comply with the desire expressed in the letter that Mr. Stevens would "begin fixing things that you may get the rent for 1947".
It is true that when the letter and the last prepared form of will were offered in evidence by contestants objection was made thereto by able counsel for proponent on the ground that "this letter is with reference to an unsigned will", and the further ground that the documents might confuse the issues, and that such evidence was incompetent, irrelevant and immaterial, and that the court, in sustaining the objection, did so on the ground the instrument was never executed as a will and "that it does not throw light on any phase of the issue in controversy here". However, the learned Chancellor was in error in so ruling. (Hn 3) The circumstances surrounding the preparation of these documents, their contents, and the action of the parties with reference thereto, were competent upon the questions whether Mrs. George intended the letter as a will and so considered it, and whether, in legal effect, it was a will.
We are forced to conclude that the terms of the letter are not testamentary, or dispositive, in their nature and effect, and that the letter is merely an expression of a desire with the purpose to later effectuate it, which was never done.
Reversed and judgment here for appellants.