Murry v. Murry

[356] The opinion of the Court was delivered by Gibson, C. J. As a statute has prescribed a particular badge of testamentary authenticity since the paper in contest was written, the decision now to be made, must be of limited application as a precedent; and I shall do no more than mark the principles on which it is rested. The earlier decisions certainly gave to almost every imperfect scrap of paper written in contemplation of death, the efficacy of a testamentary disposition; but the courts have, in a great measure, retraced their steps, and the result of the authorities collected in Roberts on Wills, ch. 1, sect. 17, is, that the writer must have intended the paper to operate as it stood, without a further act to complete it; and that this must appear Rom the paper itself. In Matthews v. Warner, 4 Ves. 209, Lord Rosslyn carried the principle to its extreme limit in repudiating a will, subscribed and dated, with a codicil annexed, because the testator called it a plan of his will proposed to be drawn. A testamentary intention, however, is to be inferred from every prospective disposition where no particular expression, or apparent want of completion, indicates a suspension of it. On these principles depend Griffin v. Griffin, 4 Ves. 197, (note) Coles v. Trecothic, 9 Ves. 249, and Barnet’s Appeal, 3 Rawle 15. Now a most potent indication of suspended intention, and in the absence of formal execution, a conclusive proof that the paper was’ not designed to operate as it stood, is a failure to provide for something declared to be a subject of intended provision. Does the paper exhibit such a failure here? After devises of lands to children and grandchildren, the writer provides for others by legacies raised from lands to be sold, as he expresses it, “ by my executors hereafter named;” yet he proceeds, not so far as to name any. Could any thing more distinctly evince the suspension of an intent to declare his whole counsel? That it was a part of his scheme to provide for the execution of his will by his own agents, we have his own assertion; yet the intended provision remains unsupplied, and the deficiency is attributable to nothing, but a suspension of his purpose. Nor were the functions of those agents to be trivial or unimportant. They were to be discretionary in determining the time and manner of the sale and payments; in putting out a fund for the maintenance of the widow; and in applying the principal, should the interest fall short. Who will assert that he would have consented to let the paper take effect on any other condition? By declaring a present intent to appoint those who were in his confidence, he declared it to be his intent not to trust to appointment by the law; and we must infer that executors would have been nominated, had his plan been carried out. The importance of a testamentary delegation of fiduciary power, was highly appreciated in the earlier periods. “ The naming or appointing an executor,” says Swinburne, Pt. 1,s. 3, pl. 11, “is said to be the foundation, the substance, the head, and is indeed the true formal cause of the testament; without which, a will is no [357] proper testament, and by which only the will is made a testament.” So, also, says Godolphin, Pt. 1, ch. 1, s. 2, “ the appointment of an executor is the very foundation of the testament; whereof the nomination of an executor and the justa votuntas of the testator, are the two main essentials;” and in Woodward v. Darcy, Plowd. 185, the judges held that, “without an executor the will is void.” I pretend not to say it would have been so here, had not executor-ship been propounded as a part of the decedent’s plan; but the stress laid upon it, shows it to bé a matter of substance, even by the mitigated principles of our day. His will has consequently not been expressed. Had there been a formal execution and publication of it, the omission might have been referred to a change of purpose; but the parol evidence of his declarations that he had already made his will, were they applicable only to the paper in question, would fall short of the effect, because the entireness of it as the frame-work of a will, must be judged of frhm itself. Even in cases where extrinsic declarations may operate, they must distinctly appertain to the particular paper, as was decided in Hock v. Hock, 6 Serg. & Rawle 47; and in that respect, the proof would be defective here, because the decedent may have written other wills. We are clear that the statute operates only on wills written subsequently; but under the law as it stood, the paper in contest is destitute of the necessary proof of authenticity. Judgment affirmed.