Patterson v. English

The opinion of the court was delivered, by Williams, J. The main question in this case is, should the [458] writing in controversy have been submitted to the jury to determine whether or not it is the will of Collins E. Patterson, deceased. It consists of six different items written with a lead pencil, under the date of January 12th 1871, on the last four pages of the decedent’s memorandum-book entitled “Merchant’s Account Book and Buyer’s Guide,” found the next day after he died, in his private drawer, in a desk belonging to the plaintiff, David M. Rickabaugh, with whom he lived. These items are wholly disconnected and separated from each other by spaces of greater or less width, and a line drawn between them, with the name of C. E. Patterson written with a lead pencil, immediately below the last item. They are all in the decedent’s handwriting, but the date is not, nor does it appear by whom it was written. The genuineness of the signature is denied, but the jury have found that it is in the decedent’s own proper handwriting. Did the deceased then, in writing down these detached items, and signing them in the manner he did, intend them to be his will-, and to take effect as such after his death ?. They are not in the form of a will, and he nowhere declares them to be his will. They are not preceded or followed by the usual formalities of. a will. There are no words of gift or bequest in either of the items, nor do any such words precede or follow them. What intrinsic evidence is there, then, arising from the face of the paper, or the words themselves, that the decedent wrote and intended them as his will ? If a will is an instrument by which a person makes a disposition of his property to take effect after his decease, what is there in these disconnected memoranda evincive of the decedent’s intention to make such a disposition of his property ? It is true that no formal words are necessary in order to make a valid will; the form of the instrument is immaterial, if its substance is testamentary. But if the instrument is not testamentary in form or substance, what intrinsic evidence is there that it was intended as a will ? A gift or bequest after death is of the very essence of a will, and determines a writing, whatever its form, to be testamentary. Whether a writing is a will or not, does not depend upon the maker’s declaring it to be a will at the time he executes it, but upon its contents. But how can an instrument or writing be regarded as a will, if the maker does not declare it to be, and the contents do not show that it is his will ? To constitute a valid will of personalty the writing must be either complete on its face, or if incomplete or defective it must appear that it was intended by the writer to operate as his will in its unfinished and incomplete state. But how does it appear that the incomplete memoranda in this case were intended to operate as a will ? There is nothing on the face of the paper or in the words themselves to indicate such intent, nor is there anything from which it can be inferred that any gift was intended except the words “ to be paid,” in the first, second and fourth items. But when were the amounts [459] specified in these items to be paid ? In the lifetime of the writer or after his decease ? There is nothing in the language to show when they were to be paid. These items may have been intended as instructions for his will, or as memoranda of gifts he intended to make in his lifetime. The mere words “ to be paid” do not amount to a testamentary bequest of the sums mentioned, nor show that they were to be paid after his death. But how is it with regard to the items which the plaintiffs allege were intended as bequests to them ? They may have been memoranda of the amounts which the decedent had paid, or which he intended to pay the plaintiffs for the services which they had rendered him while he was sick. There is not one word in either of them which clearly indicates that he intended them as testamentary bequests. There is then no intrinsic evidence that the decedent, in writing down the items in question in his memorandum-book, intended them as his will. Is there any extrinsic evidence that he intended them as such ? His declarations as to the will he had made and the bequests he had given are relied on for this purpose. But there is no evidence that he referred to the items in the memorandum-book as the will which he had made. The declarations testified to by the witnesses were all made prior to their date. But it is contended — and on this ground the declarations were admitted — that as the date is not in the handwriting of the decedent, it may have been made after the alleged will was written. But the presumption is that the date was written before and not afterwards, and that it was seen by the decedent and made with his knowledge. Primá, facie it is the true date of the writing in issue, and there is nothing to contradict or overthrow it. There is then no extrinsic evidence that the decedent intended the writing in controversy as his will. He did not so declare, and it cannot be inferred from anything that he said prior to the time it was written. The defect in the evidence is that there is nothing in it to show that the decedent referred to the items contained in his memorandum-book as his will. It is more than probable that he referred to a will which he had written with the aid of the book of forms with which he was furnished, and that this was the paper which Caroline English saw him burn a day or two before his death. But whether so or not, there is no sufficient evidence that his declaration, referred to the writing set up as his will by the plaintiffs. The court should therefore have withdrawn the cause from the jury, and instructed them that there was no evidence that would justify them in finding that the writing in issue was the will of the decedent, Collins E. Patterson. This view of the case renders it “unnecessary to consider the question mainly discussed on the argument, viz.: whether under our statute relating to wills, a paper purporting to be testament [460] ary, written and signed with a lead pencil, is a valid will.' It will be time enough to determine this question when its decision becomes necessary; but whether valid or not, no will should be written or signed with a lead pencil, on account of the facility with which the writing may be altered or effaced. Judgment reversed.