Merrill v. State

133 P. 134, 21 Wyo. 421, 1913 Wyo. LEXIS 21

• Court: Wyoming Supreme Court
• Decided: June 30, 1913
• Docket: No. 731
• Status: Published

Opinion

Beard, Justice.

The plaintiff in error, J. G. Merrill, filed a petition in the District Court of Uinta County, alleging in substance that one Rody Thornton died at Bennington, Idaho, on the 4th day of May, 1912, and that at the time of his death he was a resident of Uinta County, Wyoming; and that he left in said Uinta County an estate consisting of personal and real property. That the real estate left by the deceased was of the estimated value of $30,000, and the personal property of the value of about $40,000. That deceased left a nuncupative will in which the petitioner is named as the sole legatee; that deceased died without issue and was an unmarried man, and that there are no heirs resident in the State of Wyoming or elsewhere so far as petitioner knows. The writing alleged to be the nuncupative will of said deceased, and which the petitioner prayed might be admitted to probate as the last will and testament of said Rody Thornton, deceased, is in words and figures as follows,' to-wit:

“In the matter of the nuncupative will of Roda Thornton, deceased. On the 4th day of May, 1912, at Benning-ton, in Bear Lake County, Idaho, Roda Thornton of Midway, Uinta County, Wyoming, being in the immediate expectation of death from hemorrhage of the lungs due to Pulmonary Tuberculosis, and being there and then informed by his attending Physician that he could live but a short time, and there and then not being physically able to make and execute a written will, in the presence of the undersigned subscribers, did declare his last will and wishes concerning the disposition of his property, in the following words, or substance thereof, viz.: ‘I desire that J. G. Merrill of Bennington, Idaho, have all of my property and estate, and I give and will it all to him.’ At the time the said Roda Thornton stated the foregoing as his will, he was of sound mind and memory, and not under any restraint, and he at that time desired us to bear witness that such was his wish, desire and will. Reduced to writing and sealed by us this 7th day of May, 1912.”

(Signed) “Dr. D. W. Poyntrr (S)”

“Samurl R. Hall.”

(This instrument- is referred to in the findings of the court as Exhibit 1.)

The Attorney General, on behalf of the State of Wyoming, filed objections to admitting said alleged will to probate on the grounds that said deceased left no heirs at law so far as known. That the instrument purporting to be a nuncupative will was no will at all. That the same was not made, attested and executed as required by the laws of Wyoming, in this: “that said instrument was not made in writing or typewritten; that said instrument was not witnessed by two competent witnesses; that said instrument was not signed by the deceased nor by a person in his presence, by his express direction.”

Upon the trial the court found the facts to be, and stated its conclusions of law as follows:

“First: That Rody Thornton died at Bennington, Bear Take County, Idaho, on the 4th day of May, A. D. 1912, and that at the time of his death he was a resident of Uinta County, Wyoming, and left in said county and state an estate consisting of real and personal property.

Second: That the said Rody Thornton left no heirs within the State of Wyoming, or elsewhere, so far as known.

Third: That a few hours before his death on the said 4th day of May, A. D. 1912, the said Rody Thornton called to his bedside one Samuel R. Hall and made the following declaration and statement to said Hall, and to Dr. D. W. Poynter, then and there present, to-wit:

T desire that J. G. Merrill have all of my property, and I will it to him.’ That af the time said statement and declaration was made, said Thornton was in imminent danger of death, and made said statement with the understanding that he could not live.

Fourth: That at the time said statement was made by said Thornton he was of sound and disposing mind.

Fifth: That the said declaration and statement of the said Rody Thornton so made to said Samuel R. Hall and Dr. D. W. Poynter, was thereafter within three (3) days after the death of the said decedent, to-wit: on the 7th day of May, A. D. 1912, reduced to writing and signed by the said Hall and Poynter, and is identified herein as petitioner’s Exhibit No. 1, offered for probate as the nuncupa-tive will of the said Rody Thornton, deceased.

Sixth: That the statement and declaration offered for probate, purporting to be the last will and testament of the said Rody Thornton, deceased, was not made in writing nor typewritten; that the said statement and declaration was not witnessed by two competent witnesses; that said statement and declaration so offered was not signed by the deceased, nor by a person in his presence, at his express direction, at or prior to the time of his death.

As a conclusion of law, from the foregoing facts, the Court finds that said instrument purporting to be the last will and testament of the said Rody Thornton, deceased, does not conform to Chapter 355, and particularly to Section 5397 of the Revised Statutes of Wyoming and is not such an instrument as complies with the requirements of said chapter and section aforesaid, and cannot be admitted to probate, and the court therefore rejects and denies the application and petition of said J. G. Merrill, filed herein for the probate of said will.”

From the judgment of the court refusing to admit to probate the instrument presented as the nuncupative will of said Rody Thornton, deceased, the proponant brings error.

It appears from the record filed in this court that after the decision of the District Court refusing to admit to probate said instrument as the will of said Rody Thornton, deceased, certain persons claiming to be heirs at law of said deceased appeared and petitioned the court for the removal .of James W. Chrisman, who had been appointed as administrator of said estate, and for the appointment of John R. Arnold as such administrator; and that such proceedings were had that said Chrisman was removed and said Arnold appointed as such administrator. That he duly qualified, and on motion in this court it was ordered that he be substituted as defendant in error in this action in the place of said Chrisman.

It is conceded by counsel for plaintiff in error that the right to dispose of one’s property by will “is not a constitutional right, but one depending entirely upon the sanction of the legislature, and subject to the restrictions which the law making power may see fit to impose.” It is contended, however, that by Ch. 26, Comp. Raws 1876, now Section 3588, Comp. Stat. 1910, the common law of England, which recognized nuncupative wills as valid as to personal property, was adopted by that section of our statutes and that such wills are valid in this state at least to that extent. The section reads as follows: “The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, and all declaratory or remedial acts or statutes made in aid of or to supply the defects of the common law prior to the fourth year of James the First, (excepting the second section of the sixth- chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and ninth chapter of thirty-seventh Henry Eighth) and which are of a general nature, and not local to England, shall be the rule of decision in this territory when not inconsistent with the laws thereof, and shall be considered as of full force, until repealed by legislative authority.” For the purposes of this case it may be conceded that if there is no statute of this state inconsistent with the common law as adopted by the above quoted section, then a nuncupative will is valid in this state for all the purposes that it would have been valid at common law.- But by an act approved February 8, 1882, entitled, “An act to provide the manner in which wills shall be executed in the Territory of Wyoming and for other purposes,” it was provided: “All wills to be valid must be in writing, witnessed by two competent witnesses, and signed by the testator or by some person in his presence and by his express direction,” etc. (Sec. 4, Ch. 107, S. E. 1882.) Since the passage of that act it cannot be reasonably maintained that the common law with respect to nuncupative wills is still in force in this state, unless that statute has been modified or repealed by subsequent legislation. It declares in no uncertain terms that all wills must be in writing and signed by the testator or by some person in his presence and by his express direction. No statute of the territory or state mentioned a nuncupative will prior to the act of 1891; and it is upon that act that counsel for plaintiff in error chiefly rely. That act was approved January 10, 1891, and is entitled, “An act providing for probate jurisdiction and procedure, and prescribing the duties of courts and the officers in connection therewith.” That act relates solely and exclusively to probate procedure. It provides how wills,shall be proved; but not one word can be found in the entire chapter (covering seventy-five pages of the Session Laws) prescribing in any form the requisites of a will, who is competent to make a will, or what property may be devised or bequeathed thereby. There is nothing in the act which would .enable the court to determine whether or not the instrument propounded for probate was in law a valid will; and recourse would necessarily have to be had to the statute prescribing what persons are competent to make a will and the formalities necessary to be employed in its execution; and these we find in a separate and distinct part of the statutes. The provisions of the act relied upon to sustain the contentions of plaintiff in error are found in Chapter 70, sub-Chapter 4, Secs. 5, 6 and 7, S. L- 1890-91, entitled as above, and are as follows: “Sec. 5. Nuncupative wills may, at any time within six months after the testamentary words are spoken by the decedent, be admitted to probate, on petition and notice, as provided herein for the probate of other wills. The petition, in addition to the jurisdictional facts, must allege that the testamentary words, or the substance thereof, were reduced to writing within thirty days after they were spoken, which writing must accompany the petition.” “Sec. 6. The court, or judge thereof in vacation, must not receive or entertain a petition for the probate of a nuncupative will, until the lapse of ten days from the death of the testator, nor must such petition at any time be acted on until the testamentary words, or their substance, is reduced to writing and filed with the petition, nor until the surviving husband or wife (if any) and all other persons resident in the state or county interested in the estate, are notified as hereinbefore provided.” “Sec. 7. Contests of the probate of nuncupative wills and appointments of executors and administrators of the estates devised thereby must be had, conducted and made as hereinbefore provided in cases of the probate of written wills.”

These provisions, and in fact the entire chapter in which they appear, were taken almost literally from the Code of California, and seem to have been adopted by the Legislature without discovering that the laws of that state on thé subject of wills provided for nuncupative wills as follows: “A nuncupative will is not required to be in writing, nor to be declared or attested with any formality.”

“To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed: 1. The estate bequeathed must not exceed in value the sum of one thousand dollars. 2. It must be proved by-two witnesses who were present at the making thereof, one of whom was asked by the testator, at the time, to bear witness that such was his will, or to that effect. 3. The decedent must, at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear, or peril of death, or the decedent must have been, at the time, in expectation of immediate death from an injury received the same day.” (Cal. Civ. Code, Secs. 1288 et seq.) Such a will being provided for in the substantive law of that state, the rules of procedure for its proof have something to act upon; but not so here, where our statute contains no such provision. In the case of Neer v. Cowhick, 4 Wyo. 49, 31 Pac, 862, 18 L. R. A. 588, the olographic will of Cowhick was offered for probate. It was not witnessed; but it was contended by the proponant that by another provision of the chapter we are now considering, viz: “An olographic will may be proved in the same manner as other private writings are proved,” the will was valid although not witnessed. The court said: “This act repeals in express terms many provisions of the former law made obsolete under the constitutional provision conferring the powers and jurisdiction of probate courts under the territorial regime upon district courts. The former statute relating to the competency of testators, the devises of lands, the passing of after acquired property by the will, and the provisions relating to the execution and attestation of such instruments were not repealed, although a number of sections relating to the proof of wills succeeding these sections of the Wills Act were repealed expressly. There is no general repeal of inconsistent laws, and the intent of the Legislature is plain to preserve unimpaired Section 2237 of the Revised Statutes (now, as amended, Section 5397, Comp. Stat. 1910), requiring all wills to be in writing, signed by the testator or by some person in his presence by his express direction and by two competent witnesses.” And it was held that because the will was not witnessed it was invalid. 'If this provision relating to the proof of olo-graphic wills did not repeal the former act requiring all wills to be witnessed, it would seem to imply that the provision we are considering did not repeal the requirement of the former act that “all wills must be in writing and signed by the testator,” etc. But if it be assumed that the act of 1891 validated nuncupative wills, being the later expression of the legislative will, what is the situation? In 1895 the Legislature passed an act which was approved February 6, 1895, entitled, “An act to amend section two thousand two hundred and thirty-seven (2237) of the Revised Statutes of Wyoming, relating to wills.” Which act is as follows:

“Section 1. That Section 2237 of the Revised Statutes of Wyoming is hereby amended so that it shall read as follows. Section 2237. All wills to be valid must be in writing, or typewritten, witnessed by two competent witnesses, and signed by the testator or by some person in his presence and by his express direction, and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will. No subscribing witness to any will can derive any benefit therefrom unless there be two disinterested and competent witnesses to the same, but if without a will such witness would be entitled to any portion of the testator’s estate, such witness may still receive such portion to the extent and value of the amount devised.

“Sec. 2. Any typewritten wills which ma)'- have been executed prior to the passage of this act, shall be admitted to probate, notwithstanding the fact that they are typewritten, if in all other respects they are legally executed.

“Sec. 3. This act shall not apply to olographic or holographic wills.

“Sec. 4. This act shall take effect and be in force from and after its passage.”

We have set out this act in full for the reason that it is the latest legislation on the subject of wills, and to clearly show that if the former Wills Act was modified by the Probate Procedure Act of 1891, that act was again modified by the act of 1895, an<3 since that date all wills are governed by its provisions. We are clearly of the opinion that at least since the taking effect of the act of February 6, 1895, nun-cupative wills are not recognized as valid wills by the laws of this state, and that the instrument offered for probate as the will of said Rody Thornton, deceased, was invalid as a will, and that the District Court committed no error in refusing to admit it to probate as such. The judgment of the District Court, therefore, is affirmed. Affirmed.

Scott, C. J., and Potter, J., concur.