MR. JUSTICE PREEBOURN:
This action comes to us on appeal. The question presented to us is whether or not a letter from the decedent to a stepchild is a holographic will. Two district judges found the letter to be such a will. Under the will the disposition of the property goes to residents of Montana who are stepchildren of the deceased.
The questioned instrument is a letter of seven pages, dated November 29, 1945, signed by the maker, and entirely in her own handwriting. It contained in part the following language: “There is something else I want you, George, and the family to know and that is that should I pass out, (which I surely will sometime) well whenever that happens if I leave any worldly goods worth possessing I should want it divided equally among you five children. I have a few bonds on which I have placed the names of my nephews and nieces as beneficiaries — and I had once thought of making a will to leave whatever else I have to the Van Voast grand-children, but that did not seem to me to be fair to Edith and Audra who have no children. I do not know whether or not I should make a will, or just how to make it as things now stand. In any event I have all arrangements made with Comstocks here to take charge if I should be stricken, while here alone, with no one to look after such things, and there is a contract to that effect in my safety box in the bank.
[452]*452“I am expecting with reasonable confidence to be here for at least a few more years, bnt one can never tell, you know, just what is coming up, and I see no reason for putting everything off for some one else to attend to at the last minute. I have also had a marker for myself placed in the Walton lot in the cemetery here, beside my sister, who was my mother for twenty-nine years.
“Hoping you are all well and that your winter is not too cold I will sign off and go look for something to eat.
“Yours with love, Cora.”
R. C. M. 1947, see. 91-108, provides: “A holographic will is one that is entirely written, dated, and signed by the hand 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.”
Since the letter was written, dated and signed entirely in the handwriting of the testator, it was upon its face a valid holographic will, so far as its form was concerned. In re Noyes’ Estate, 40 Mont. 190, 201, 105 Pac. 1017, 26 L. R. A., N. S., 1145.
If, then, such letter shows, when read in connection with surrounding facts and circumstances, a testamentary intention, it is a valid, holographic will. In re Noyes’ Estate, 40 Mont. 231, 106 Pac. 355.
‘ ‘ There is no definite fixed rule by which testamentary intent may be gauged. * * * All of the courts lay down the rule that the determination of the testamentary intent is to be made from the writing itself, and most states hold that the surrounding circumstances may be considered, Montana being one of the latter.” In re Augestad’s Estate, 111 Mont. 138, 106 Pac. (2d) 1087, 1088.
No particular words are necessary to show a testamentary intent. It must appear only that the maker intended by •it to dispose of property after the maker’s death. In re Button’s Estate, 209 Cal. 325, 287 Pac. 964; Mitchell v. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Rep. 279; In re Estate of Spitzer, 196 Cal. 301, 237 Pac. 739. See, In re Irvine’s Estate, 114 Mont. 577, 139 Pac. (2d) 489, 147 A. L. R. 882.
In Langfitt v. Langfitt, 108 W. Va. 466, 151 S. E. 715, 716, [453]*453the West Virginia Supreme Court said: “The letter is not testamentary in form, but we are of opinion that the phrase ‘if I should fail to pull through this operation, I want you to sell,’ etc., denotes testamentary intent. In England, as early as 1755, a letter containing the informal phrase, ‘if any misfortune should happen to me’ was held to be ‘clearly testamentary.’ See Repington v. Holland, 2 Lee, 106, 161 E. R. 280. A number of American decisions in which like expressions have been held to indicate testamentary intent are collected in Re Tinsley’s Will, 187 Iowa 23, 32, 33, 174 N. W. 4, 7, 11 A. L. R. 826. * * *
“Long before the Revolution it was not considered necessary in England that the testator should intend to execute or realize that he had executed a will. See 28 Halsbury (the Laws of England) p. 546, sec. 1079, and cases cited in note (p); 1 Lomax on Ex’rs, p. 34, sec. 2. The Virginia court, following the English decisions, held in 1846, ‘Nor is it necessary that the testator should intend to perform, or be aware that he has performed, a testamentary act. ’ Pollock v. Glassell, 2 Grat., [Va.] 439, 455. * * *
“Animus testandi is not the purpose to make a will but to direct the posthumous disposition of property. ‘The animus testandi * * * consists of an intention * * * to make some positive disposition of property * * to take effect in no way until the testator’s death.’ Gardner on Wills, p. 15, see. 4; In re Johnson’s Will, 181 N. C. 303, 305, 106 S. E. 841, 842. ‘The essence of a testamentary disposition of property is that it be merely a declaration of the testator’s intention as to what shall take place after his death.’ Eaton v. Blood, 201 Iowa 834, 839, 208 N. W. 508, 511, 44 A. L. R. 1516; Pollock v. Glassell, supra; Roberts v. Coleman, supra [37 W. Va. 143, 16 S. E. 482] ; Lauck v. Logan, supra [45 W. Va. 251, 31 S. E. 986] ; Harrison, supra [1 Harrison on Wills], sec. 102(3); Schouler, supra [1 Schouler on Wills, Ex’rs and Adm’rs, 5th Ed.], sec. 274; 1 Jarman on Wills (6th Ed.) 33; 40 Cyc. p. 1084, sec. 11; 28 R. C. L. 110.”
In Warnken v. Warnken, Tex. Civ. App., 104 S. W. (2d) 935, 937, the Texas Court said: “* * * In holographic instru[454]*454ments neither the form of the document nor the words used by the writer are of controlling importance if its genuineness is certain, and the intention of the maker is clear. * * * Nor does the fact that a testator does not realize that he is making a will and does not so consider the instrument so executed, deprive such instrument of testamentary character or prevent its probate, if in fact and in law it constitutes a testamentary disposition of his property. Adams v. Maris, supra [Tex. Com. App., 213 S. W. 622] ; Barnes v. Horne (Tex. Civ. App.), 233 S. W. 859; Merrill v. Boal, 47 R I. 274, 132 A. 721, 45 A. L. R 830; 44 Tex. Jur., sec. 111, p. 655.”
The rule, which appeals to us as common sense, by which the character of such an instrument as Cora Van Voast’s letter is to be determined, is set out in Nichols v. Emery, 109 Cal. 323, 329, 41 Pac. 1089, 1091, wherein it is said: “ It is undoubtedly the general rule enunciated by the leading case of Habergham v. Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an instrument is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property, to accrue and take effect only upon his death, and passing no present interest.”
Cora G. Van Voast, who died on December 7, 1949, at Unionville, Missouri, left no will, other than the proposed holographic will, the letter dated November 29, 1945. So that, in determining whether such letter is a valid holographic will, we must bear in mind that “of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.” R C. M. 1947, sec. 91-210. See In re Irvine’s Estate, supra.
The evidence shows that H.
Free access — add to your briefcase to read the full text and ask questions with AI
MR. JUSTICE PREEBOURN:
This action comes to us on appeal. The question presented to us is whether or not a letter from the decedent to a stepchild is a holographic will. Two district judges found the letter to be such a will. Under the will the disposition of the property goes to residents of Montana who are stepchildren of the deceased.
The questioned instrument is a letter of seven pages, dated November 29, 1945, signed by the maker, and entirely in her own handwriting. It contained in part the following language: “There is something else I want you, George, and the family to know and that is that should I pass out, (which I surely will sometime) well whenever that happens if I leave any worldly goods worth possessing I should want it divided equally among you five children. I have a few bonds on which I have placed the names of my nephews and nieces as beneficiaries — and I had once thought of making a will to leave whatever else I have to the Van Voast grand-children, but that did not seem to me to be fair to Edith and Audra who have no children. I do not know whether or not I should make a will, or just how to make it as things now stand. In any event I have all arrangements made with Comstocks here to take charge if I should be stricken, while here alone, with no one to look after such things, and there is a contract to that effect in my safety box in the bank.
[452]*452“I am expecting with reasonable confidence to be here for at least a few more years, bnt one can never tell, you know, just what is coming up, and I see no reason for putting everything off for some one else to attend to at the last minute. I have also had a marker for myself placed in the Walton lot in the cemetery here, beside my sister, who was my mother for twenty-nine years.
“Hoping you are all well and that your winter is not too cold I will sign off and go look for something to eat.
“Yours with love, Cora.”
R. C. M. 1947, see. 91-108, provides: “A holographic will is one that is entirely written, dated, and signed by the hand 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.”
Since the letter was written, dated and signed entirely in the handwriting of the testator, it was upon its face a valid holographic will, so far as its form was concerned. In re Noyes’ Estate, 40 Mont. 190, 201, 105 Pac. 1017, 26 L. R. A., N. S., 1145.
If, then, such letter shows, when read in connection with surrounding facts and circumstances, a testamentary intention, it is a valid, holographic will. In re Noyes’ Estate, 40 Mont. 231, 106 Pac. 355.
‘ ‘ There is no definite fixed rule by which testamentary intent may be gauged. * * * All of the courts lay down the rule that the determination of the testamentary intent is to be made from the writing itself, and most states hold that the surrounding circumstances may be considered, Montana being one of the latter.” In re Augestad’s Estate, 111 Mont. 138, 106 Pac. (2d) 1087, 1088.
No particular words are necessary to show a testamentary intent. It must appear only that the maker intended by •it to dispose of property after the maker’s death. In re Button’s Estate, 209 Cal. 325, 287 Pac. 964; Mitchell v. Donohue, 100 Cal. 202, 34 Pac. 614, 38 Am. St. Rep. 279; In re Estate of Spitzer, 196 Cal. 301, 237 Pac. 739. See, In re Irvine’s Estate, 114 Mont. 577, 139 Pac. (2d) 489, 147 A. L. R. 882.
In Langfitt v. Langfitt, 108 W. Va. 466, 151 S. E. 715, 716, [453]*453the West Virginia Supreme Court said: “The letter is not testamentary in form, but we are of opinion that the phrase ‘if I should fail to pull through this operation, I want you to sell,’ etc., denotes testamentary intent. In England, as early as 1755, a letter containing the informal phrase, ‘if any misfortune should happen to me’ was held to be ‘clearly testamentary.’ See Repington v. Holland, 2 Lee, 106, 161 E. R. 280. A number of American decisions in which like expressions have been held to indicate testamentary intent are collected in Re Tinsley’s Will, 187 Iowa 23, 32, 33, 174 N. W. 4, 7, 11 A. L. R. 826. * * *
“Long before the Revolution it was not considered necessary in England that the testator should intend to execute or realize that he had executed a will. See 28 Halsbury (the Laws of England) p. 546, sec. 1079, and cases cited in note (p); 1 Lomax on Ex’rs, p. 34, sec. 2. The Virginia court, following the English decisions, held in 1846, ‘Nor is it necessary that the testator should intend to perform, or be aware that he has performed, a testamentary act. ’ Pollock v. Glassell, 2 Grat., [Va.] 439, 455. * * *
“Animus testandi is not the purpose to make a will but to direct the posthumous disposition of property. ‘The animus testandi * * * consists of an intention * * * to make some positive disposition of property * * to take effect in no way until the testator’s death.’ Gardner on Wills, p. 15, see. 4; In re Johnson’s Will, 181 N. C. 303, 305, 106 S. E. 841, 842. ‘The essence of a testamentary disposition of property is that it be merely a declaration of the testator’s intention as to what shall take place after his death.’ Eaton v. Blood, 201 Iowa 834, 839, 208 N. W. 508, 511, 44 A. L. R. 1516; Pollock v. Glassell, supra; Roberts v. Coleman, supra [37 W. Va. 143, 16 S. E. 482] ; Lauck v. Logan, supra [45 W. Va. 251, 31 S. E. 986] ; Harrison, supra [1 Harrison on Wills], sec. 102(3); Schouler, supra [1 Schouler on Wills, Ex’rs and Adm’rs, 5th Ed.], sec. 274; 1 Jarman on Wills (6th Ed.) 33; 40 Cyc. p. 1084, sec. 11; 28 R. C. L. 110.”
In Warnken v. Warnken, Tex. Civ. App., 104 S. W. (2d) 935, 937, the Texas Court said: “* * * In holographic instru[454]*454ments neither the form of the document nor the words used by the writer are of controlling importance if its genuineness is certain, and the intention of the maker is clear. * * * Nor does the fact that a testator does not realize that he is making a will and does not so consider the instrument so executed, deprive such instrument of testamentary character or prevent its probate, if in fact and in law it constitutes a testamentary disposition of his property. Adams v. Maris, supra [Tex. Com. App., 213 S. W. 622] ; Barnes v. Horne (Tex. Civ. App.), 233 S. W. 859; Merrill v. Boal, 47 R I. 274, 132 A. 721, 45 A. L. R 830; 44 Tex. Jur., sec. 111, p. 655.”
The rule, which appeals to us as common sense, by which the character of such an instrument as Cora Van Voast’s letter is to be determined, is set out in Nichols v. Emery, 109 Cal. 323, 329, 41 Pac. 1089, 1091, wherein it is said: “ It is undoubtedly the general rule enunciated by the leading case of Habergham v. Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an instrument is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property, to accrue and take effect only upon his death, and passing no present interest.”
Cora G. Van Voast, who died on December 7, 1949, at Unionville, Missouri, left no will, other than the proposed holographic will, the letter dated November 29, 1945. So that, in determining whether such letter is a valid holographic will, we must bear in mind that “of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.” R C. M. 1947, sec. 91-210. See In re Irvine’s Estate, supra.
The evidence shows that H. R Van Voast, father of six children, died in 1938, leaving as part of his estate the land which passes to five of his children, respondents here, if the letter, under discussion here, is held to be a valid holographic will. Such land is “seven hundred twenty aeres, and I should judg*e about two hundred is farm land, ’ ’ located near Turner, Montana..
H. R Van Voast and his wife, Cora, were married on February 2, 1909, in Missouri. They moved to Montana in 1913. By such [455]*455marriage Cora became the step-motlier of Van Voast’s six children, ranging in age from 8 years to 20 years. One of these children, Zelma, died in 1940. Over the years the relations between Cora and her stepchildren were those as ordinarily exist between a mother and her own children. It was testified:
“Q. Would you say that it was the same relationship that ordinarily existed between a natural son and his own mother? A. Well, of course, she was the only mother I ever knew.
“Q. And that’s the way you felt toward each other? A. Sure. ’ ’
Cora, who returned to Missouri in 1943, came to Montana to care for Zelma in her last illness, at Culbertson, Montana. The respondents and their stepmother corresponded regularly and the respondents, or some of them, visited her each year.
Cora Van Voast acquired the land by a “settlement of my father’s estate. He left no will, so we decided- that it would be best to give her the largest unit of the estate, and she was automatically retired on that * * * Q. That was the mutual agreement of the heirs? A. Yes, sir.”
In July 1946, Cora said to one of the respondents, while he was visiting her in Missouri, ‘ ‘ If there’s anything left I am going to return it to the Van Voast children. * * if there is anything left I am returning it to you children.”
It would seem from the letter, admitted as a holographic will, that Cora Van Voast was, when she wrote it, in poor physical condition, for she writes: “I am more or less staggery and uncertain of equilibrium * * * I am abotit to lose my courage. * * * Yes, he [her-dog] it was who caused my accident * * * he made a lunge * * * throwing me off balance and I pitched to the ground with my arms flung forward and hands pointed right into the ground. * * * What makes me anxious now is the weakness I have in my back and limbs. * * * I do not think of walking * * * without my cane because I am afraid of falling and afraid I might get so I couldn’t walk.” She apparently wanted advice from George Van Voast, to whom the letter was written, for she wrote: “Well, I suppose you may be wondering [456]*456why I am taking up your valuable time with all this. Well I’ll tell you it is because I want some [one] to know that old age is creeping up and if I am not in as good condition as I should be I want some one to know about it and maybe give me some advice about what to do.”
It is our judgment, as it must have been the judgment of the learned district judges, that the use of the closing words of decedent’s letter supplies the intent that she then and there foreclosed her affairs and was willing to rest upon the wishes expressed in her letter: “I am expecting with reasonable confidence to be here for at least a few more years, but one can never tell, you know, just what is coming up, and I see no reason for ptutting everything off for someone else to attend to at the last minute. I have also had a marker for myself placed, in the Walton lot in the cemetery here, beside my sister, who was my mother for twenty-nine years.” Emphasis supplied.
It may be alluded to that her letter sought suggestions, and if any may come she would change her wishes. The record discloses no action was further taken by the deceased regarding her estate, either upon suggestion or otherwise.
One cannot read the letter without feeling that she was thinking of approaching, and perhaps sudden, death, and in a state of mind under which many wills are made. The letter clearly indicates she intended upon her death that her “worldly goods” should go to the five Van Voast children. Although the letter was written in 1945 and she died in 1949, Cora did not, during those four years, make any other will. Taking the letter, the circumstances surrounding it, and the law, into consideration, one may conclude, with reason, that the two district judges, judges of years of experience and of recognized ability, were correct in holding that the letter, written by Cora G. Van Voast, was a valid, holographic will, made with testamentary intent.
• The evidence was sufficient to justify the findings of fact, conclusions of law, and the judgment made and entered by the district court. For the foregoing reasons the judgment of the lower court is affirmed.
[457]*457ME. JUSTICES BOTTOMLY and ANDEESON, concur.