Alston v. Davis

(dissenting): I cannot agree that this paper has been established according to law, as the will of Augustus Davis. It does not seem to have been written as a will, nor, so far as I can see, intended as a will. It is not executed as a will, according to any of the requirements of the law. It has no attesting witnesses. It was not found among the valuable effects of the alleged testator after his death. Nor was it deposited as a will with any one for safekeeping. St. John's Lodge v. Callender, 4 Ired., 335; Simms v. Simms, 5 Ired., 684.

In my opinion, it must be the intention of the testator to make a will that is to dispose of his property by what he does, before it can be his will. And this intention must be manifest from the paper itself, or it must be found by the jury ; and the burden of showing this is on the pro-pounders. 1 Redfield on Wills, Star p. 174, and note. I do not believe a man can make his will “ onbenowins ” to himself, and I have no idea that it ever occurred to Augustus Davis that he was making his will when he wrote this letter.

In response to the issue of devisavit vel non the jury returned a special verdict upon which the court below rendered the judgment appealed from. The two elements of every will, that is operative to transmit property, are that it shall disclose the intention of the maker concerning the disposition of his property after his death, and that it shall be executed and attested according to the requirements of law. No particular form is prescribed or is necessary. However inartificial the language in which it is expressed, and even where the apt legal words which ordinarily characterize a deed or power of attorney may not be used in it, if upon an examination of the whole instrument it. appears that it was the purpose of the maker to give expression to his wishes as to the disposition of the whole or any portion of his property to take effect after his death, it will be regarded as a will, unless the statutory requisites as to execution and attestation have been disregarded. Woemer Am. Law A., Sec. 38, p. 60; Cross v. Cross, A & E., 8 (C. L. R.), 714; Byers v. Hoppe, 51 Md., 206; In The Goods of "W. Coles, 2 Court of Probate and Divorce, 362. The paper-writing is a letter offered for probate as a holograph will, the material portion of which is as follows:

*209“ I hope you will get fixed on your place this year all right. I am sorry you will have to sell your land that you got from our father’s estate to make the payments. I don’t think I will ever sell mine. When I get old I am going to build on it, so I can have it as a home when I get old. If I should die or get killed in Texas the place must belong to you, and I would not want you to sell it. I don’t care about tenants put on it; I am afraid they will destroy the timber on it- If I could walk over the tract and pick out a place that suited me to build I would not mind allowing a good tenant to build and open' a small field on the tract, and I am willing for you to pick out a pretty place to build on for me. So if you see a good tenant that will build a house and opeira small field on the tract I will get you to make the best arrangements with him that you can for me, and you can get Brother John to take you over there so you can pick out the spot to build on. Any place that you pick out will suit me. t If you collect any money of mine keep it until I call on you for it, and try and collect all you can for me. My sweet sister, I don’t want you to trouble yourself or to allow these little trifles of mine that I speak to you about to bother you in the least,; I merely mention them that yon may know how to act in case you should feel like attending to them for me or should have a convenient opportunity. I don’t get any letters at all from North Carolina except from you. I used to have several correspondents back there, but it has been so long since I have had a letter or written to them that I don’t know who owes, they or I.”

The statutory requirement as to the execution and attestation of a holograph will, or so much thereof as is pertinent to the question here presénted, is that it shall “ be found among the valuable papers and effects of any deceased person, or shall have been lodged in the hands of any per*210son for safe-keeping, and the same shall be in the handwriting of such deceased person, with his name subscribed thereto or inserted in some part of such will.” The jury-find that every part of this letter is, as the required number of witnesses testified, in the handwriting of Augustus Davis. The letter from which the foregoing extract is taken was mailed at Stockdale, Texas, and purported to have been dated February 28, 1873, and received in due course of mail. The jury found, as a presumption arising from the fact that Augustus Davis had not been heard from in seven years, that he was dead.

There is no safer rule for the interpretation of a statute, where a controversy arises as to the meaning of its language, in applying a general principle embodied in it to a particular state of facts than to look to the reason which prompted its enactment. If the meaning of the words used in the statute were unmistakable, there is no ground for further dispute, because they must be interpreted according to their obvious meaning. Randall v. Railroad, 104 N. C., 410.

But the question whether a paper writing has been lodged in the hands of another for safe-keeping, is one that must be answered, when the paper has been in fact sent or given to another person by the maker, after a careful review of all of the attendant circumstances and after considering them in connection with the writing, in order to determine what inferences may be fairly drawn from the words and conduct of the writer as to his purpose in sending or giving the writing. The requirement of the statute is founded upon the idea that a decedent’s estate should not be deemed to have been disposed of by any careless expression used by him in a letter, unless there was something to indicate that he intended the writing not merely to subserve the purpose of expressing his present wishes, *211which might change, but that he intended to state how he desired to dispose of a part or the whole of his property after his death. Where a testator puts away a paper among his valuable papers, or gives it to another for safe keeping, it is evidence that he wishes it preserved in order that it may serve the purpose after his death for which it purports to have been written. It is not essential that the maker of the instrument should use any particular words, such as “ I lodge this paper with you for safe-keeping as the law requires I should do.” No such rigid rule was intended to be applied in the interpretation of the statute giving the privilege to one, inops consilii, and remote from those he loves, of providing for them, when the thought of their dependent condition comes up before him, even on a farm in the backwoods. Does the letter show upon its face that the writer was thinking of the contingency of his death while in Texas % Does it plainly express the disposition he wished made of the land if the contingency happened ? The answer to these inquiries is in the words of the letter : “ If I should die or get killed in Texas, the place must belong to you and I would not want you to sell it.” In determining whether the letter was given to her for safe-keeping, it must be remembered that it shows she was charged with the duty of collecting what was due to him, and was presumably the custodian of any valuable papers left behind him. The law does not require men, situated as Augustus Davis was, to go through needless forms. He wrote her a letter expressive of his intention that she sb.ou.ld have his land, and took pains in that connection, as if he thought it possible that she might assert her rights under the letter, to add that when she should come into the inheritance he would'prefer that she should not sell the land. It would seem to be sticking in the bark to allow the devise to fail because he took it for *212granted that she would lodge in some safe place without a special request to do so a letter which might become so valuable to her. If he had written this expression of his wishes as to a devise to her to a stranger without requesting him to preserve the letter, a different question would have been presented. But the law is founded upon reason and common sense, and therefore warrants the inference of an intent to leave with a person for safe-keeping a paper in the preservation of which the person entrusted with its custody is above all others most interested. Why add to the statement, that the place must belong to her, upon his dying in Texas, the injunction to keep the letter safely ?

In the case of Doe, &c., Cross v. Cross, supra, the facts were that P., being in India, executed an instrument attested by two witnesses, in the first part of which he constituted E. his attorney to collect notes, &c., but the latter part of the instrument is as follows : “ And I do empower her, the said E., to hold and retain all proceeds of said property for her own use, until I may return to England and claim possession in person, or, in the event of my death, I do hereby in my name assign and deliver to the said E. tne sole claim to the before-mentioned property, to be held by her during her life and disposed of by her as she may deem proper at the time of her death. At the same time I -wish it to be understood that I claim all right and title to said property on my arrival in Great Britain, when the term of E.’s occupancy shal be considered at an end.” True, that paper was attested by the requisite number of witnesses to make a good devise, but th^language is reproduced to show that substantially the same idea as that expressed in the letter was upheld as a testamentary disposition of property.' In both instruments there is a clear declaration of a desire and purpose that in case the maker should not return to his old home'by reason of dying at his *213]ater place of abode, bis property should go to the person, in one instance named in the power of attorney, and in the other, in the letter addressed to her. Neither purports upon its face to be a devise, except in so far as the particular words used in it to convey a wish show it to be in law a devise, or a disposition to take effect after death. Language, about equivalent, is used in letters in several of the other cases cited supra, and though in Some of them the suggestion that the letter be preserved is added, they nevertheless establish the principle that such language is evidence of the intent to make a disposition of property. If that purpose is unmistakably shown, it is clearly a reasonable inference that a letter transmitted by mail to one deeply interested in preserving it, is sent by the writer for safe-keeping. He had better reason for believing that she would take care of it without such caution, than that another, who had no interest in the result, would keep it safely with an express request to do so. The statute is but an affirmance of the elementary principle that it is'reasonable to suppose that a testator will manifest the wish to have his will safely kept, when it does not upon its face purport to be a formal devise, but that purpose can be accomplished as readily by finding a custodian, whose interest it is to preserve it, as by confiding it to the care of a disinterested keeper and relying on his observance of the most solemn injunction to keep it safely.

The case of St. John’s Lodge v. Callender, 4 Ired., 335, is not analagous, because the writing propounded there was found, not amongst the papers of the maker but amongst those of his partner, who meantime had died, and there was no testimony offered except the incompetent declaration of the deceased partner "as to how he acquired the custody. Non constat that the paper had not been thrown into a waste basket by the maker with intent to *214destroy it, and picked up by his associate in business. But here it is found as a fact that the writer sent it by mail to his sister in whose custody it was found, as might have been expected.

The judgment is reversed. Let this opinion be certified to the end that judgment may be entered' below on the special verdict in favor of the propounders.

Judgment Reversed.