Green v. Jensen

108 P. 927, 37 Utah 428, 1910 Utah LEXIS 68

• Court: Utah Supreme Court
• Decided: April 29, 1910
• Docket: No. 2096
• Status: Published

Opinion

FRICK, J.

The appellant filed her petition in the district court of Uintah County, Utah, and with it presented for probate a certain writing which she alleged was the last will and testament of one John Jensen, late of Uintah County, deceased. The alleged will was in the form of a letter written by the deceased and directed to tbe appellant, wbo was bis fiancee. Tbe letter in full is as follows: “John Jensen & Co., Dealers'in Miners’ and Handlers’ Supplies. Dragon, TTtab, Jan. 26, 1909. My Dear Millie: I bad just written a letter to you wben I received your most interesting letter I ever got from you. I am glad to bear tbat you favor our union tbis spring. Tes, my dear Millie, we will try to get our union sealed as soon as we can. I need you bere and I want you bere to comfort me and be a helpmate to me, and tbat we both may be benefited and blessed. (Tbis is a kiss.) I am surprised to see your thoughts correspond with mine. You need not worry about your travel across tbe country. I will come and get you, and we will go right on to Salt Lake and back to Diragon and never mind tbe reception, we will have tbat some other time. I appreciate your sentiments and I am fully in sympathy with them, as I am with all you propose, but we must economize as much as we can. We are not millionarys and you and I must live, and so we will malee things match as much as we can, and wben we get well off then we will spread it on (do you see). Sweet Millie, I do not know if you like tbis or not, but I think you a sensible girl. I will make you my sole heir whether we get married or not, and if I die before you and me are married, I will make you my legal heir, but I hope tbat I will enjoy your company and association before tbat, now tbis is only talk. I don’t expect to die, but I am just telling you what I mean. If we were together we could talk all tbis thing face to face — I will be other there some time this spring. I will let you know later and we will arrange things. We may get married in Vernal, and then go to Salt Lake City, but I have to see tbe Stake President about tbat. You just keep your ears stiff and trust in tbe Lord. Pray for me and yourself and we will be all right. Yes, my dear, I hope all saloons will be closed and whiskey banished from tbe face of tbe earth. You shall not think that those post cards is of any consequence. It was only to show you what tbe store looks like. I will send you some more to show you Dragon from different points. We don’t want to stay bere all our lives, but we will stay here till we can do better or worse. I like to make a few dollars and go in tbe chicken business. God bless you, my dear Millie. From your loving John.” The district court held that the writing was not intended as a will, and that, in legal effect, it was not such, and hence refused to admit it to probate, and entered -judgment accordingly. The appeal is from the ruling and judgment.

It is urged’ that the district court erred in its conclusions and judgment. Conceding, for the purposes of this decision, that the writing in question is in form and execution sufficient as a holographic will under the provisions of section 2136, Comp. Laws 1907, yet the writing lacks the elements of substance which are requisite to constitute it a will whether holographic or regular. It is manifest, from the face of the writing itself, that the writer did not intend it as constituting a disposition of his property, or any part of his property. True, the writer says, “I will make you my sole heir, . . . and .if I die before you and me are married I will make you my legal heir.” These are the only words that even the most liberal constructionist could claim had any tendency towards manifesting an intention on the part of the writer to make a post mortem dis- 1 position of property. It is, however, clear from the language used that the writer did not intend to presently bequeath or devise any property, but that he merely expressed an intention tO' do so at some future time. This is not only the unavoidable conclusion to be deduced from the language itself, but such a conclusion is fortified by the fact that the writer does not mention or specify any property of any kind whatever. If the writer had intended the letter as a present disposition of his property, or any part of it, he no doubt would have said something about property of some kind. To our minds it is very clear that the letter in question was not intended as a will, but that it was intended for what it purports to be, namely, a letter by which the writer communicated his thought and plans, in a general way at least, to one with whom it was his intention to estab-lisb the closest social relations in tbe near future. Suck a writing, therefore, falls far short of being a present disposition of property.

The judgment is' therefore affirmed, with costs to respondent.

STRATTP, O. J., and MeCARTT, J., concur.