Noble v. Fickes

Mr. Justice Vickers delivered the opinion of the court: A will is an instrument by which a person makes a disposition of his property to take effect after his death. (1 Jarman on Wills, 26; Schouler on Wills, ,p. 1; 1 Red-field on the Law of Wills,—4th ed.—chap. 2, sec. 2, par. 1; Robinson v. Brewster, 140 Ill. 649.) Under section 2 of our Statute of Wills, to entitle a will to probate four things must concur: First, it must be in writing and signed by the testator, or in his presence by some one under his direction ; second, it must be attested by at least two or more credible witnesses; third, two witnesses must prove that they saw the testator sign the will in their presence or that he acknowledged the same to be his act and deed; fourth, the witnesses must swear that the testator was of sound mind and memory at the time of signing or acknowledging the will. Proof of the foregoing facts, in the absence of any proof of fraud, compulsion or other improper conduct, will make a prima facie case entitling the will to probate. (Dickie v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 id. 469; Thompson v. Owen, 174 id. 229; Canatsey v. Canatsey, 130 id. 397; Harrison v. Weatherby, 180 id. 418.) There is no prescribed form for a will, either under our statute or by the common law. If the intention of the maker to dispose of his estate after death is sufficiently manifested, and this intention be lawful in itself and the instrument be executed in conformity to the statute, it will operate as a will regardless of its form. (Jarman on Wills, 34; 1 Red-field on Wills,—4th ed.—chap. 6, div. 7-9; Robinson v. Brewster, 140 Ill. 649.) In the Brewster case the following instrument was held a valid will: "Know all men by these presents, that I, Joseph Robinson, for the consideration of one dollar to me in hand paid, as well as my affection, do hereby assign and set over to my daughter, Eliza Jane Brewster, all of my property, both personal and real, to have the same after .my death. “Witness my hand and seal this seventh day of May, 1877. his Joseph X Robinson. (Seal.) “Attest: J. S. Post, E. McClellan.” mark In a note to section 266 of Schouler on Wills a large number of cases, both English and American, are collected, showing where various kinds of instruments, such as notes, bonds, deeds of indenture and deeds poll, and other writings, have been held valid as wills. After an exhaustive examination of all the authorities accessible to us, we think the rule may be laid down that any writing, however informal it may be, made with the expressed intent of giving a posthumous destination to the. maker’s property, if executed in accordance with the statutory requirements, will be a good testamentary disposition. We have not been able to find a case in this State where a testamentary disposition in the form of an ordinary deed of bargain and sale has been sustained, although a number of cases are to be found where such instruments have been declared testamentary in character and void because not executed in compliance with section 2 of our Statute of Wills. Where such deeds have been actually delivered to the grantee in the lifetime of the grantor they have been sustained as a present grant of a future interest. Thus, in Shackelton. v. Sebree, 86 Ill. 616, a deed containing the words, “this deed not to- take effect until after my decease—not to be recorded until after my decease,” which had been delivered to the grantee in the lifetime of the grantor, was held to • pass a vested remainder in fee to the grantee. Livery of seizin having been abolished by our statute, no intermediate life estate is necessary to support a remainder. In Harshbarger v. Carroll, 163 Ill. 636, the words in the deed were: “This indenture, made this seventeenth day of March, in the year of our Lord eighteen hundred seventy-one, between Samuel Harshbarger, Sr., party of the first part, and Sylvia Harshbarger and her heirs, (only to take effect at the death of the grantor,”) etc. It was held that such a deed, duly executed and delivered in the lifetime of the grantor, vested a remainder in the grantee. Bowler v. Bowler, 176 Ill. 541, is another case of the same class. There the words of the deed were: “Not to be of any force and effect until after the death of the grantor.” The deed was upheld as a good conveyance in presentí of a future estate in fee. Other cases of the same class no doubt might be found, but these are sufficient to illustrate the rule established by them. In all of these cases it is to be noted that there was an actual delivery of the deed to the grantee in the lifetime of the grantor. Had there been no delivery the instruments could not have been upheld as deeds, and whether they could have been supported as testamentary dispositions would have depended upon whether the statutory requirements relating to the attestation of wills had been complied with. In Olney v. Howe, 89 Ill. 556, speaking of an assignment of a promissory note, made by a separate instrument, and other personal property, containing the clause, “possession of the same to be given to and taken by the party of the second part immediately upon the decease of the party of the first part,” this court, speaking by Mr. Justice Baker, said (p. 559) : “The writing is essentially testamentary in its nature, and, omitting for the present the element of contract, its object was to make disposition of property after the death of the owner. It did not, after such death, take effect as a testamentary devise, for it was not executed and witnessed as required by the Statute of Wills.” Cline v. Jones, 111 Ill. 563, (a case much relied on by appellant in the case at bar,) is a case where a father executed a deed to one of his children but did not deliver it. The evidence showed that the grantor retained control of the deed and did not intend it to take effect until after his death. In disposing of that case this court said (p. 569) : “The deed, by its purport, was absolute, conveying the grantor’s entire interest, to operate immediately. But the evidence shows the deed was not intended to be absolute but to be qualified in its effect,—that it was not intended to convey the grantor’s whole interest, but that he meant to have a life estate unless the grantee should move upon the land, which she never did; that the deed was not intended to operate presently, but only upon the grantor’s death or going upon the land to reside. The evidence shows the distinct intention not to create a present estate in the grantee. As, then, there was never any actual delivery of the deed but the grantor ever kept it in his own possession, and as it never was his intention that the deed should presently take effect and become operative according to its terms, there was no delivery of the instrument as the deed of the grantor and it was not valid as a deed. As Mrs. Jones never moved on the land this made the deed one to take effect at the grantor’s death, which was a disposition of property of a testamentary character, and invalid because not in compliance with the Statute of Wills.” Many other cases are to be found where this court has held deeds and other instruments disposing of property at the death of the maker invalid because they were testamentary in character and not executed in strict conformity with the statutory enactments regulating the making of wills. (See Bovee v. Hinde, 135 Ill. 137; Hayes v. Boylan, 141 id. 400; Oliver v. Oliver, 149 id. 542; Wilson v. Wilson, 158 id. 567; Rountree v. Smith, 152 id. 493; Hollenbeck v. Hollenbeck, 185 id. 101; Wilenou v. Handlon, 207 id. 104; Oswald v. Caldwell, 225 id. 224.) In many of these cases, and perhaps others of the same class, the instrument under consideration has been freely spoken of by this court as testamentary in its character and therefore invalid because not executed in accordance with the Statute of Wills, but none of these cases can be regarded as an authority holding that the instruments under consideration would or . would not be sustained as valid testamentary dispositions if such instruments had been properly executed under the Statute of Wills. The case in hand is therefore, so far as we are advised, the first one to come before this court involving the validity of an ordinary deed of bargain and sale as a testamentary disposition. Upon the general proposition that a valid will may be made in the form of an ordinary deed of bargain and sale we entertain not the slightest doubt, where the formalities of the statute are properly observed and it clearly appears on the face of the instrument that it is not to take effect until the death of the maker. The inherent difficulty with the instrument involved in this case is, that there is nothing in the writing itself which imparts to it a testamentary character. To give it this character a resort must be had to extrinsic facts depending on parol evidence. The admissibility of such evidence for the purpose of establishing the animo testandi, "when offered for the purpose of supporting the writing as a testamentary disposition, is, in our opinion, the most serious question involved in this case. It is a well established rule that parol evidence is inadmissible to add to, alter, vary or contradict the terms of a valid written contract or other instrument of a solemn and conclusive nature. (Elliott on Evidence, sec. 568; Rigdon v. Conley, 141 Ill. 565.) The rules for the admission and exclusion of parol evidence in regard to wills are essentially the same which prevail in regard to contracts generally. Such evidence is not receivable to show the intention of the testator except to enable the court, where the question arises,, to give the language such an interpretation as, from the circumstances in which he was placed, it is reasonable to presume the testator intended it should receive, or, as it is sometimes expressed, to put the court in the testator’s place. (1 Redfield on Wills,—4th ed.—p. 496.) Under the lax rules that formerly prevailed in England, especially in the ecclesiastical courts, where wills of personal property were probated, cases may be found where a resort to extrinsic parol evidence was allowed for the purpose of establishing testamentary intent, where there was no ambiguity on the face of the instrument and the instrument afforded no evidence that it was only to take effect upon the death of the maker; and there are some decisions in this country to be found in the earlier reports where instruments in the form of a deed of gift have been admitted to probate out of regard to the giver’s testamentary purpose, which was disclosed by extrinsic parol evidence. Some of these cases may be found collected in the note above cited from Schouler on Wills. This question is very ably discussed by Chancellor Kent in Mann v. Mann, 1 Johns. Ch.. 231, where the earlier cases are carefully reviewed and the rule of law deduced, as follows: “It is a well settled rule that seems not to stand in need of much proof or illustration, for it runs through all of the books from Chaney’s case, 5 Co. Rep. 68, down to this day, that parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will or to explain the intention of the testator, except in two specified cases: First, where there is a latent ambiguity arising dehors the will as to the person and subject matter meant to be described; and second, to rebut a resulting trust. All of the cases profess to go upon one or the other of these grounds.”- (See 1 Redfield on Wills,—4th. ed.—p. 501.) In Clay v. Layton, 134 Mich. 317, the question arose as to the admissibility of parol evidence to show the testamentary intention in the making of a deed which was unambiguous on its face. That court, in a well considered and exhaustive opinion, held that such evidence was not admissible, and expressed its conclusion as follows: “We have had difficulty in finding a case in which the exact point before us is raised, but it seems manifest that the same rule that forbids the contradiction of an established will should forbid the contradiction of the same instrument as a means of establishing it as a will, when its terms plainly show it to be a deed conveying a present interest. It is only when the writing is of doubtful import that interpretation by the aid of extrinsic evidence becomes necessary, and in such case interpretation—not contradiction—is permissible. We are reluctantly driven to the conclusion that we cannot give effect to the deceased’s manifest desire,—a desire so well established and so apparently well grounded and just as to merit our approbation; but we fear that the trite saying that ‘hard cases make bad law’ would be applicable should we sustain the complainant’s contention. To do so would be to override established mies and principles essential to the protection of the rights of heirs.” There are very strong reasons why this rule should be applied in' this State. Our statute requires wills to be in writing. If an unambiguous deed, which on its face purports to convey a present interest, can be converted into a will by proving an animo testandi in the maker by parol evidence, the effect is not only to change the legal character of the instrument, but to engraft upon it one of the essentials of a will by parol, in the face of our statute which requires all wills to be in writing. This case is clearly distinguishable from Cline v. Jones, supra, and other cases in line with it, including the case between these parties decided in 219 Ill., where the question at issue was whether a deed had been delivered. Delivery is largely a question of intention and may be shown by any competent evidence. Evidence on that point does not contradict or vary the terms of the instrument, but bears on the question whether the instrument, in fact, ever had a legal existence. It would be a strange result if the same evidence which destroyed the instrument as a deed should bring it to life as a will. Our conclusion is that it would be an unsafe rule to hold that an undelivered deed, which by chance happened to be attested by two witnesses, could be converted into a will by parol evidence. The decree of 'the circuit court of Carroll county is affiimed. Decree affirmed.