Pullen v. Estate of Pullen

Carleton Harris, Chief Justice. This appeal involves the validity of a purported holographic codicil. On February 19, 1969, Virgie Pullen executed a properly attested typewritten will which was prepared by her attorney. In June, 1969, Miss Pullen entered the Clark County Memorial Hospital in Arkadelphia, returning to her home shortly after June 26, and remaining there until November, 1969, when she was again admitted to the same hospital. She was subsequently transferred from Clark County Memorial Hospital to a Little Rock hospital where she died on November 22, 1969. The will of February 19, 1969, containing eleven different items, was admitted to probate. A holographic writing, admittedly entirely in the handwriting of Miss Pullen was denied probate as a codicil to the will herein mentioned. From the order of the court denying the admission of this instrument to probate comes this appeal. For reversal, it is simply asserted that the court erred in refusing to admit to probate the writing in question. The appellants are Robert E. Pullen, a nephew of the deceased, and two grand nephews. Since there is no dispute but that the statutory will of February 19, 1969, was properly admitted to probate, no mention of its provisions need be made except where pertinent to the issues in this case. We proceed to a discussion of the facts relied upon, and a photostatic copy of the writing prepared by Miss Pullen, and the other side of the paper on which it is written, are made a part of this opinion for the purpose of clarity. Several phases of the case that we do not deem pertinent to a determination of this appeal are argued; were we to hold that the evidence establishes that Miss Pullen intended the writing to be a codicil, it would then be necessary to pass on these additional questions. However, since we cannot agree with appellants that the evidence clearly reflects that Miss Pullen had the testamentary intent for this writing itself to constitute a codicil, there is no need to go further than this one facet of the litigation. It is well settled that a writing must itself evidence a present purpose to declare a bequest rather than an intention to make such a provision in the future. Johnson v. White, 172 Ark. 922, 290 S. W. 9S2. In Stark v. Stark, 201 Ark. 133, 143 S. W. 2d 875, we held that there can be no will unless there is the intention to make a will, and the existence of this intention is not a matter of inference, but must be expressed so that no mistake be made as to the existence of that inention. What are the facts that support appellants’ assertion that the alleged holographic codicil actually was a codicil? The strongest circumstance, if not the only one, is that Miss Pullen, while a patient the last time at Clark County Memorial Hospital, delivered to Jim Fisher, Administrative Clerk at the hospital, the will, and the handwritten alleged instrument with directions that they be placed in the hospital safe. She enclosed them in an envelope which was then put into a large paper bag and asked Fisher to place the sack in the vault, to remain there until such time as she would be able to return home; if not able to return home, Fisher was to deliver the contents to Dr. Tommy Roebuck,1 a long time friend of Miss Pullen. Mr. Fisher said: “She called me in her room and designated to me in her terms to take care of the will, and wanted me to place these in the vault and to be there until such time she [[Image here]] [[Image here]] went home or in any other case deliver them to Dr. Roebuck. That was the instructions I had.” The circumstances indicating that the writing was only a memo are, we think much stronger. In the first place, it will be noticed that each statement contained in the memorandum addresses itself to a second party, and would appear to be either a direction to her attorney, or a reminder to herself, to make certain changes at some time in the future. The notations for change are themselves somewhat confusing. For instance, she had written “(third) change this in my will”, but the change to be made is not mentioned. Item “Third” in the typewritten will bequeaths and demises all of her personal property, including all home furnishings, to her executor, and directs that he dispose of same with the proceeds to be used “as hereinafter directed”. The items from “Fourth” through “Tenth” include specific devises and bequests (with the exception of item “Eighth” which names Dr. Roebuck executor and sets his fee). Item “Eleventh” is the residuary clause and leaves the balance and residue of her property to the First Baptist Church of Arkadel-phis. As stated, there is not the slightest indication of what change is to be made under item “Third”, and other changes desired as expressed in the writing are not dependent, in any manner, upon the change of the third item. Miss Pullen has then written “(ninth) Change Beverly Tatman to one hundred dolars”. This notation is not at all understandable, since item “Ninth” of the typewritten will leaves Beverly Tatman one hundred dollars. It will be observed that Miss Pullen had written “change bal. 8c residue of my estate I give to the discretion of the exector to use at his ■ discression in any way he wishes”; this however was scratched out, which is even more of an indication that the writing is nothing more than a memorandum, and was never intended to be given testamentary status. Here, there is also an additional circumstance which indicates that Miss Pullen had no firm or fixed intention but was merely expressing thoughts that should be given consideration, for directly beneath the scratched out disposition of the residue she wrote, “Residue of my estate goes to Chris Pullen and Bruce Pullen [grand nephews] except what should be used for debts or settling of estate”. It will be immediately observed that these dispositions are very much in conflict, and it seems unlikely that a person preparing an instrument as important as a will, would actually start writing the instrument until he or she definitely knew to whom he intended to leave the property. Her intent becomes even more confusing when we examine the typewritten will, for on some of the items mentioned, she has, with pen, endeavored to change the typewritten will to comply with the notations on the memorandum — but on other items she has not made the changes set out in the memorandum. What we are pointing out is simply that it is not even clear what she intended to do, even if the instrument could qualify as a codicil. There are two other circumstances, the first of which is rather potent, that clearly indicate the writing to be only a memo. J. E. Still, who apparently had been the attorney for Miss Pullen for some period of time, testified that he had drawn several wills for her at different times, and that on such occasions, she would bring with her notations written in her own handwriting relative to what she desired to do. The other circumstance is that the so called codicil is written on the back of an advertisement of the Arkansas Federal Savings of Arkadelphia. While we recognize that a perfectly valid will, or codicil, could have been written on this paper, it would seem, if it were her desire that the writing be treated with the dignity of a formal instrument, that she would have requested a nurse or other hospital aide to give her some paper. It is apparent, from what has been said, that we do not consider this writing to be a testamentary disposition. The chancellor, in his opinion, said that he was inclined to the view that the instrument was testamentary in character, though he denied probate on the basis that it was not a valid codicil. We do agree with him that this “instrument” cannot stand alone as a will. Be that as it may, we have held that if the chancellor is right in the result reached, he will be affirmed, even though our reason for reaching the conclusion differs from the reason given by the trial court. In Morgan v. Downs, 245 Ark. 328, 432 S. W. 2d 454, we said: “It is our rule, however, that on trial de novo a chancery decree will be affirmed if it appears to be correct upon the record as a whole, even though the chancellor may have given the wrong reason for his conclusion.” Since we hold the view that the writing was no more than a memorandum, and is thus not entitled to probate, there is no need to discuss other questions such as whether a valid executed statutory will can be changed by a holographic codicil, or whether the “instrument” could be incorporated into the February will by reference, and still further alternatively, could the will be incorporated by reference into the “instrument”? A discussion of these points would be dicta. Under our finding, the writing in question was not a codicil, but a memorandum. Affirmed. Brown, Fogleman and Byrd, JJ., dissent. Footnotes [1] Itis not entirely clear, but it appears that Dr. Roebuck was not Miss Pullen’s physician; in fact, it is not clear that the title of “Dr.” refers to the status of a medical doctor. The envelope which contained the will and alleged codicil was apparently an evenlope that had been furnished by Miss Pullen’s attorney, J. E. Still, when he prepared the instrument in February 1969, since it bore his name and return address in the left-hand corner, and on the front, stated: “LAST WILL AND TESTAMENT OF VIRGIE PULLEN” (To be delivered to Dr. Tommy G. Roebuck, in case of death)