This is an appeal from a judgment of the district court of Stark county, affirming the judgment of the county court in admitting a document to probate as the holographic will of Mary McGillivray Street, which is as follows, to wit:
"Money in Bank to be Disposed of:
H.E. Montague ................. $10,000.00 Maria Wheat ................... 10,000.00 Willetta McGlashan ............ 3,000.00 Marion McGlashan .............. 3,000.00 William Wheat ................. 2,000.00 Charles Wheat ................. 2,000.00 Fred Wheat .................... 2,000.00 Watson Wheat .................. 2,000.00 Florence Griffith ............. 2,000.00 Mary Jane Griffith ............ 1,500.00 Richard Griffith Jr. .......... 1,000.00 Norman Montague ............... 3,000.00 Richard Montague .............. 2,000.00 Hamilton Montague ............. 2,000.00 Mary Currier .................. 1,000.00 Donald Montague ............... 2,000.00 and Donald the ranch.
"Mary J. McGillivray Street "Oct. 1923."
Envelope: (in which document was found) addressed: "For F.H. Johnson and Claude Montague." *Page 647
This document is entirely in the handwriting of Mary McGillivray Street, and it is conceded that she was competent to make a will. She was an old woman seventy-five years of age at the time of her death, and the beneficiaries named in the purported will are her sister, her nephews, and her nieces. She died on July 22, 1924, and there was found in her safety deposit box in the First National Bank of Dickinson, North Dakota, the foregoing document together with certificates of deposit for $48,500 payable to the order of self or H.E. Montague. In 1915, Mary McGillivray Street, then Mary McGillivray, made a will and the beneficiaries of said will, which was rendered invalid by her subsequent marriage in 1922, are the beneficiaries in the purported holographic will.
While in Dickinson in the summer of 1923, H.E. Montague was told by Mrs. McGillivray Street, "That if anything happened to her, he would be notified, and to come up here and to open her safety deposit box and he would find there the disposition of the property or the money."
The purported holographic will was found in an envelope in Mrs. Street's safety deposit box, addressed to R.H. Johnson and Claude Montague. R.H. Johnson was the vice president of the First National Bank of Dickinson, and the bank official who made the certificates of deposit at Mrs. Street's request, payable to the order of self or H.E. Montague, and Claude Montague is the H.E. Montague to whom the certificates of deposit were made payable. In a conversation with her niece, Mrs. McGlashan, in 1923, Mrs. Street told Mrs. McGlashan how to make a holographic will, and that she herself had everything fixed.
It is the contention of the appellant that the document is not testamentary in form or in substance, and that the same is not entirely dated as required by the statute. Appellant relies upon the decisions of California and Louisiana and in brief and oral argument insists that we took our statute relating to holographic wills from California; that California took it from Louisiana; that Louisiana took it from the Code Napoleon and that we are bound by the decisions of California and Louisiana. The provision relating to holographic wills appears for the first time in our code as § 691, Revised Codes, 1877, and has been retained without change until the present date. There is nothing *Page 648 in the law to show where it was taken from, and nothing to justify the statement that it was taken from California, except, that the language is the same. It is not the same, however, as the language in the Louisiana statute, and if its origin was in the Louisiana statute, or the Code Napoleon, it was very materially amended. The Louisiana Statute reads (Merrick's Revised Code of Louisiana, 2d ed. § 1588): "A holographic testament is that which is written by the testator himself. Inorder to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the state." The Louisiana Statute says: "In order to be valid it must be." In our statute, the language "In order to be valid it must be" is stricken out and the statute simply states, "A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form and may be made in and out of this territory and need not be witnessed." If it was taken from the Louisiana statute there was some reason for striking out this provision, "In order to be valid it must be," and adding, "and need not be witnessed." The Louisiana statute must have been considered too drastic, otherwise the entire language of the Louisiana code would have been adopted by the legislature. The rule invoked by the appellant that we are bound by the decisions of California and Louisiana does not apply in this state, for the reason, that under § 7321, Comp. Laws 1913, "The code establishes the law of this state respecting the subject to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice."
There was but one decision in California relating to holographic wills prior to the adoption of the 1877 Code in the territory of Dakota, viz., Clarke v. Ransom, 50 Cal. 595. The question involved in this case is whether the will was testamentary in character and the decision is a very liberal one in its construction. The will is as follows:
"Mayfield Grange, Tuesday, June 23, 1874.
"Dear Old Nance:
"I wish to give you my watch, two shawls, and also five thousand dollars.
"Your old friend, "E.A. Gordon." *Page 649
The court said: "On its face there is nothing to indicate that it was intended to be testamentary. . . . The instrument on its face simply expresses a desire, or at most an intention on the part of Mrs. Gordon, to give to the person designated as `Dear Old Nance' the watch and shawls, together with $5,000. It clearly appears, however, from the testimony, . . . that Miss Ransom is the person designated as `Dear Old Nance.' It is well settled in this country and in England, first, that in determining whether the instrument propounded was intended to be testamentary, reference will be had to the surrounding circumstances, and the language will be construed in the light of these circumstances. Second, that if it shall appear under all the circumstances that the instrument was intended to be testamentary, the court will give effect to the intention, if it can be done consistently with the language of the instrument. . . ." Citing 1 Jarman, Wills, 363; 1 Redf. Wills, 174, 175; Outlaw v. Hurdle, 46 N.C. (1 Jones, L.) 151; Ehrenberg's Succession, 21 La. Ann. 280, 99 Am. Dec. 729; Jones v. Nicolay, 2 Rob. Eccl. Rep. 288, 163 Eng. Reprint, 1320; Re Todd, 2 Watts S. 145; Maxwell v. Maxwell, 3 Met. 100; Robnett v. Ashlock, 49 Mo. 172; 1 Williams, Exrs. 90; Wootton v. Redd, 12 Gratt. 205; McGrath v. Reynolds, 116 Mass. 566.
In this case oral testimony was admitted to show surrounding circumstances and it showed the testamentary character of the will and that the person designated as "Dear Old Nance" was a certain Miss Ransom. So too, in the case at bar, it appears in the testimony that prior to Mrs. Street's marriage to Mr. Street she had a will, made about 1915, and the beneficiaries in that will, which was rendered invalid by her subsequent marriage to Mr. Street, are the beneficiaries in the document offered for probate as a will in the instant case. The testimony shows that she went to Claude Montague before she came back to Dickinson, and told him that if anything happened to her, he was to go to the First National Bank in Dickinson, open her box, and he would there find authority for the disposal of her property. The evidence further shows, that the money provided for in the document was in certificates of deposit that were made payable to Mrs. Street or to H.E. Montague and found in the safety deposit box with the purported will, and it is undisputed that the beneficiary named as "Donald," who was to have the ranch, was the Donald Montague and that there was *Page 650 but one ranch consisting of 160 acres in Stark County. The document was found in a sealed envelope addressed in Mrs. Street's handwriting "For R.H. Johnson and Claude Montague." If it was simply a memorandum for Mrs. Street's benefit, why did she place it in an envelope addressed to Johnson and Montague? Mrs. Street did not need a memorandum, she knew what she wanted to do with her property, and to whom she wanted to give it. She had absolute control over the safety deposit box while she lived, and the inference that she placed the envelope with the document enclosed in the safety deposit box addressed to R.H. Johnson who made, at her request, the certificates of deposit payable to self, or H.E. Montague, and to Claude Montague, the H.E. Montague to whom the certificates were made payable, intending the document as a disposition of the money in the bank and the ranch at her death is irresistible. The document begins "Money in bank to be disposed of." When is it to be disposed of? It is disposed of when Mrs. Street dies, and the envelope with the document enclosed is delivered to R.H. Johnson and Claude Montague. After the statement "Money in bank to be disposed of" there follows the names of the beneficiaries with the amount each is to have, set opposite the name. It winds up with "the ranch to Donald." Clearly meaning that the ranch was to be Donald's. There is no question but what the wording of the document taken in connection with Mrs. Street's extreme age, and all the surrounding circumstances shows that the document is testamentary, and was intended by the testator as a holographic will.
In the recent case of Thrift Trust Co. v. White, ___ Ind. App. ___, 167 N.E. 141, the Indiana court said: "Good faith wills are solemn instruments not to be set aside because of mere irregularities as to form, but should be upheld when it is possible within the law to do so." In this Indiana case the will was entirely in the handwriting of the testatrix beginning with the words, "The will of Bell Stockman" but not signed by the testatrix in another place. Oral evidence was admitted to prove that she intended to adopt her name as written in the beginning of the will as her signature, and it was held to be sufficient under statute providing that wills must be in writing and signed by the testator.
In Re Thomas, 243 Mich. 566, 220 N.W. 764, the exact question *Page 651 was before the court, the heading of the will being: "The will of Augusta M. Thomas" the name of the testator not appearing elsewhere upon the will, and the will was held valid.
To the same effect in Stone v. Holden, 221 Mich. 430, 29 A.L.R. 884, 191 N.W. 238; Meads v. Earle, 205 Mass. 553, 29 L.R.A.(N.S.) 63, 91 N.E. 916; Armstrong v. Walton, 105 Miss. 337, 46 L.R.A.(N.S.) 552, 62 So. 173, Ann. Cas. 1916E, 137; Kolowski v. Fausz, 103 Ill. App. 528; Ex parte Cardozo, 135 Md. 407,109 A. 93; Lawson v. Dawson, 21 Tex. Civ. App. 361, 58 S.W. 64; Adams v. Field, 21 Vt. 256.
In Re Aird, Rap. Jud. Quebec 28 C.S. 235, wherein it is held, that a holographic will written in typewriting is valid.
In Re Jenkins, 157 N.C. 435, 37 L.R.A.(N.S.) 842, 72 S.E. 1072, the court said: "The provisions of a statute are, of course, mandatory and not directory, and therefore there must be a strict compliance with them before there can be a valid execution and probate of a holographic script as a will; but this does not mean that the construction of the statute should be so rigid and binding as to defeat its clearly expressed purpose. It may be construed and enforced strictly, but at the same time reasonably."
In the case of Fosselman v. Elder, 98 Pa. 159, on the back of an envelope there was written in the testator's handwriting, "Dear Bella, this is for you to open." In the envelope was found a two thousand dollar note, and the following writing in testator's hand, "Lewiston, October 2, 1879, my wish is, for you to draw this two thousand dollars for your own use should I die suddenly. Elizabeth Fosselmen." The writing inside was not sufficiently definite, and the court allowed the probate of the envelope as a part of the will. The court said, "It is not even essential to its validity that the different parts should be physically united. It is sufficient if they are connected by their internal sense, or by a coherence and adaptation of parts."
In Re Thompson, 196 N.C. 271, 62 A.L.R. 288, 145 S.E. 393, the North Carolina court held, that: "Note found in the same lock box as holders holographic will with notation on back in his handwriting, `I assign thee with note over to my wife . . . at my death,' held a valid codicil" to the will.
In Re Skerrett, 67 Cal. 585, 8 P. 181, there were two instruments *Page 652 in the handwriting of the deceased, attached together, and found among his papers, one being in the form of a letter signed by him and addressed to his sister, and the other purporting to be a copy of a deed of gift from the former to the latter, and it appearing on the face of the letter that the property described in the deed was intended by the deceased as a provision for the sister after his death. The court said:
"Neither the copy of the deed nor the letter, taken by itself, constitute a will; the one is not testamentary in its character, the other has no date; but taking them together as the deceased left them, forming one document, it is complete. The first furnishes the date, and the latter the testamentary character."
In other words, the deed which was dated was not a will because it was not testamentary in character and form, and the letter was not a will because it was not dated, and the court generously added them together and the sum total was a will.
In the case of Re Soher, 78 Cal. 482, 21 P. 8, the court in discussing the case of Re Skerrett, 67 Cal. 585, 8 P. 181, supra, said: "And we think that the rule is a sound and salutary one. If testators are to be encouraged by a statute like ours to draw their own wills, the courts should not adopt, upon purely technical reasoning, a construction which would result in invalidating such wills in half the cases."
In Re Soher, 78 Cal. 477, 21 P. 8, Soher made a will drawn by another in which his son, Adolph, was named as the beneficiary. Thereafter he made a codicil to the will in his own handwriting in which he says: ". . . I hereby affirm the foregoing will, except in the ninth article of bequests, where Adolph is included with my wife and other children, which bequest to Adolph I hereby revoke." It was dated and signed. By this codicil the testator attempted to make over a will which had not been written in his handwriting, reaffirming parts of it and revoking parts of it. The court said:
"But as has been said in other connections, it is not true as a matter of physical fact that the two documents are one and the same. The law for some purposes — mainly of construction — regards one as a part of the other. But this fiction ought not to be extended to absurd or unjust consequences." Will held valid.
In Re Morgan, 200 Cal. 400, 253 P. 703, the California court held that a "holograph will beginning `Last will and testament of *Page 653 Ynez Morgan,' and stating, `I, Ynez Morgan hereby will," but not signed at end of instrument, held to show on face as whole, that it was a complete and executed instrument." This case is followed in the case of Re England, 85 Cal. App. 486, 259 P. 956, where the will is headed, Last will of Anna England: then follows a disposition of the property which does not conclude with a period and though unsigned, was held to be a valid holographic will.
In Re Henderson, 196 Cal. 623, 238 P. 938, the California court having under consideration a codicil to a holographic will signed, "From a loving Mother," said:
"The subscription to the second paragraph, `Your loving mother,' if a material consideration here, is a sufficient signature. Ex parte Walker, 15 Quebec Pr. Rep. 15, also entitled `Rapport's de Practique de Quebec,' 15: Kimmel's Estate, 278 Pa. 435, 31 A.L.R. 678, 123 A. 405; Wells v. Lewis, 190 Ky. 626, 228 S.W. 3; Page, Wills, § 170."
The only state not in harmony with the decisions quoted is, the state of Louisiana, as shown by the following decisions. Re Poland, 137 La. 219, 68 So. 415, the court said: "Where testatrix left an unsigned holographic will enclosed in an envelope bearing the superscription, `The Will of Ellen E. Polands' such superscription did not constitute a valid signature to the will, although in the handwriting of the testatrix." It was all in the handwriting of the testatrix, and began, "The will of Ellen E. Polands, I made this my will and testament." In this case the name not only appeared on the envelope, but the will began with the name in the same way that many of the wills in the cases cited above began. The court then quotes from a French authority as follows: "The signature of the testator may be considered as the sealing of the testament, which up to the performance of that formality remains but a simple project. It is the signature alone which attests that the testament was really written and dated by the hand of the testator. The signature is an essential formality to constitute a holographic testament, and it would be impossible to conceive of anyone demanding the execution of last wishes written and signed but not signed by their author."
In Fuzier-Herman, Code Civil Annote art. 970 No. 149, it is said: "No fact, however, probative in itself could supply the defect resulting from the absence of the signature to the testamentary act itself. Thus *Page 654 a testament which is not signed, is null though it be enclosed in an envelope on which the date of the testament and the signature of the testator are superscribed and affixed."
In the case of Armant's Succession, 43 La. Ann. 310, 26 Am. St. Rep. 183, 9 So. 50, the court said: "the article 1588 (being the statute relating to holographic wills) was copied into our code from article 970 of the French Code which in turn had been taken from an ordinance of Louis XV, prescribing the forms of holographic testament. Prior and subsequent to the Code Napoleon the jurisprudence of France had been uniform to the effect that the signature must be at the end of the testament or at least that no disposition following the signature can have effect. This jurisprudence was extant and well established when in 1825, the articles of the French Code were copied into our own. We think it to be a fair presumption that the framers of our code, familiar with the interpretation of the same language, both prior to and subsequent to the Napoleon Code, must have intended and expected that our own article should receive the same interpretation, particularly to the word signature as well as to the definitions thereof in all standard dictionaries." The authorities cited and relied upon are all French authorities, and the opinion does not mention an American decision.
In Dyer's Succession, 155 La. 265, 99 So. 214, the will was dated, signed and sealed, entirely in the handwriting of the testator, but after and below the signature on the same sheet of paper the testator added a codicil in his own handwriting. The codicil which was not signed was held invalid, the court citing only French and Louisiana authorities. Under the many authorities cited in this opinion the codicil would have been held a part of the will which was signed.
The subject of holographic wills is reviewed at great length in the case of Zerega v. Percival, 46 La. Ann. 590, 15 So. 476. The authorities cited in the briefs of the case, and the authorities cited by the court have simply followed and relied on the rule that the state court is bound by the French decisions which had become the settled law of France before the adoption of the law in Louisiana. As late as July 22, 1928, in the case of Walsh's Succession, 166 La. 695, 117 So. 777, the Louisiana court quoted from Laurent, Droit Civil Francais 13, p. 192; as follows: "It is the essence of a holographic will that it be entirely *Page 655 written, dated, and signed by the hand of the testator; that is to say, that it be his work exclusively; as soon as the hand of a third party is shown it is vitiated; that is the text and spirit of the law. The court of Bourges has thus judged it. There were in the testament attacked, commas, accents, two s's, and six indications of references which were not in the hand of the testator; hence the writing was not entirely in her hand which nullifies it. It was opposed that the corrections made by the third party added nothing to the disposition. Nevertheless, said the decree, it is none the less true that the interpolations have been made with the consent of the testator, a third party co-operating to the writing of the testator, which vitiated it and rendered it null." With the statement of the law as quoted the Louisiana court said: "We are in strict accord."
Under the Louisiana decisions no part of the will can be written below the signature. In the case of Dyer's Succession,155 La. 265, 99 So. 214, supra, the will ended with the statement, "I make this my last will and testament, dated, signed and sealed by me." It was signed on the line below, after which the testatrix skipped two lines, and then on the same sheet of paper she named executors and disposed of the residue of her property all in one document, dated and signed, and yet the court held, that only, that portion which preceded the signature could be probated as a will. The signature is of greater importance in Louisiana apparently than the date, for it is held in the case of Fugua's Succession, 27 La. Ann. 271, and Zerega v. Percival, 46 La. Ann. 605, 15 So. 476, that the date may be placed below the signature.
We have shown that the decisions of Louisiana construing holographic wills are not in harmony with the courts generally of the United States, nor of Quebec, but some of our courts have followed the Louisiana decisions on the question of date. The latest case on this question is the case, Re Hail, 106 Okla. 124, 235 P. 916. This case is exactly in point with the case at bar, and Oklahoma has the same statute. The will is dated November, 1919. In the case at bar, the will is dated October, 1923. The Oklahoma court considers the following provisions of the Oklahoma statute, viz.: Section 11,230 defining a holographic will; section 11264. "A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent it must have effect as far as possible." Section 11273. "Of *Page 656 the two modes of interpreting a will that is to be preferred which will prevent a total intestacy." Section 11295: "A condition precedent in a will is to be deemed performed when the testator's intention has been substantially though not literally complied with." The court states that the foregoing sections "are taken from Dakota Territory." The statutes quoted are respectively §§ 5648, 5685, 5694 and 5716, North Dakota Comp. Laws 1913. In this case our statutes are construed, and a holographic will dated November, 1919, is held to be a substantial compliance with the statute and a valid holographic will. There is no other case like the instant case, except, in the state of Louisiana.
The California court in the case of Re Price, 14 Cal. App. 462,112 P. 482, had before it a will which read, "Dated this ___ day of ___ 1906." In this case neither the day of the month, nor the month is given, and the court held the date insufficient. Citing Heffner v. Heffner, 48 La. Ann. 1088, 20 So. 281; Robertson's Succession, 49 La. Ann. 868, 62 Am. St. Rep. 672, 21 So. 586; Fuentes v. Gains, 25 La. Ann. 85, quoting at length therefrom. The syllabus in the case of Heffner v. Heffner, 48 La. Ann. 1088, 20 So. 281, supra, is as follows: "The requirements of the code that the holographic will shall be dated, requires that the day of the month shall be stated; the day is part of the date, and the month and year without the day of the month, avoids the holographic will. Civil Code, art. 1588; Code Napoleon, art. 970; 4 Boilleux, 91; 3 Troplong, ¶ 1479; Coin Delisle, pages 151-542. Lagrave v. Merle, 5 La. Ann. 278, 52 Am. Dec. 589; Fuentes v. Gains, 25 La. Ann. pp. 85-107."
In the opinion the court said: "But the necessity of the day of the month in the date of the holographic testament is rigidly enforced by the jurisprudence under the Napoleon Code." Citing French and Louisiana cases.
In 1911, the California court had before it a holographic will dated 4-14-07. It was contended that the date was insufficient. At that time the question had not been decided by Louisiana, and the California court held, that the date was sufficient and would be construed as meaning April 14, 1907. The same question came before the Louisiana Court October 14, 1919, in Beird's Succession, 145 La. 755, 6 A.L.R. 1452, 82 So. 881. In this case the date was 9-8-18, and the Louisiana court ignoring and never mentioning the California decision, held, that *Page 657 the date was insufficient, and that the will must show on its face, the day, the month, year and century when it was executed. Citing and relying on Heffner v. Heffner, 48 La. Ann. 1088, 20 So. 281, supra, and Robertson's Succession, 49 La. Ann. 868, 21 So. 586, supra.
In Re Fay, 145 Cal. 82, 104 Am. St. Rep. 17, 78 P. 340, the court said: "The instrument was entirely in the handwriting of deceased, and bore date `May twenty-fifth, eighteen hundred and fifty-nine.' It is not claimed that the deceased was not of sound mind, nor that the purported will was not his free act and deed."
But it was claimed that there was a mistake made in the date. The court stated: "The legislature has not used the words `truly dated' nor `correctly dated' but the word `dated,' which must be construed according to the approved usage of the language. . . . The word `date' or `dated' is often used as referring to the date or time written in an instrument; thus it is provided in our code that any date may be inserted in a negotiable instrument, whether past, present, or future. . . . The date is not a material thing, although made necessary by the statute. It is a means of identification, and aids in determining the authenticity of the will; but the main and essential thing is, that the will bewholly written and signed by the hand of the testator. . . ."
In Re Lakemeyer, 135 Cal. 28, 87 Am. St. Rep. 96, 66 P. 961: "A holographic will was headed: `New York, Nov. 22, `97,' and it was held that the will was dated, the abbreviation `97' meaning 1897. Therefore, it appears to be the rule of this court, as of all other courts, to construe wills as valid in preference to holding them void."
In a long note to this case, 104 Am. St. Rep., the Compiler in reviewing the case of Re Fay, 145 Cal. 82, 78 P. 340, supra, and Re Clisby, 145 Cal. 407, 104 Am. St. Rep. 58, 78 P. 964, supra, as pointed out in the memorandum opinion of the trial judge, states: "We must confess that the reasoning upon which these decisions are based goes far towards establishing that the requirement of dating is directory rather than mandatory." It is clearly held in this Fay Case that the date is not material and while the statute requires it, it may be any date like the date on a promissory note, or other instrument, and while the will was dated in 1859, by mistake instead of 1889, the date was sufficient and the will valid.
In Re Francis, 191 Cal. 600, 217 P. 746, it is held, that a *Page 658 date in the handwriting of the testator as follows: "10-22-19" was insufficient, for the reason, that it was made upon paper where the date was partly printed, that is, the first two figures of the year 1919, were printed and the last two figures 19 were in the handwriting of testator. The first two figures were not necessary, but being there in print and having been used by the testator as a part of the will, notwithstanding that they were unnecessary and the testator himself used them as a part of the date, the court following the case of Re Thorn, 183 Cal. 512,192 P. 19, held the will invalid. Meyers, Judge, concurring said: "I concur solely, because, I must agree that this case is ruled by the decision in Re Thorn, 183 Cal. 512, 192 P. 19, and if a change is to be made in the rule as there announced it should be by legislative enactment." This case and the case of Re Thorn,183 Cal. 512, 192 P. 19, supra, are certainly not in accord with Re Fay, 145 Cal. 82, 104 Am. St. Rep. 17, 78 P. 340; Re Lakemeyer, 135 Cal. 28, 87 Am. St. Rep. 96, 66 P. 961, and Re Clisby, 145 Cal. 407, 104 Am. St. Rep. 58, 78 P. 964, supra.
It is fundamental in the drawing of a holographic will that it be entirely the work of the testator. The reason, since it need not be witnessed, is clearly for the purpose of reflecting the will of the testator without the influence of others.
In Re Thorn, 183 Cal. 512, 192 P. 19, the testator willed his country place known as "Cragthorn Park" to a certain society. The will was wholly in the handwriting of the testator, except, that the testator stamped in the name "Cragthorn Park," with a rubber stamp and with his own hand, instead of writing it in his own handwriting. An analysis of the two cases leads to the conclusion that the case of Re Francis, was decided on the ground of stare decisis.
In Re Bernard, 197 Cal. 36, 239 P. 404, the holographic will under consideration begins as follows:
"The following 4 sheets of paper included, Long Beach, California, Oct. 12, 1918. `I, Josephine Bernard of the City and County of Denver, Colo. do hereby declare this to be my last will and testament.'"
The will then continued on four sheets of paper, and was unsigned. The will was held invalid, first for want of a signature, second, for the reason that the words "Long Beach, California," were printed, and not written in the handwriting of the testator. *Page 659
In Re Oldham, 203 Cal. 618, 265 P. 183, the testator used his own stationary upon which were printed his name, the building in which his office was located, followed by the words Los Angeles, California. After the words "Los Angeles, California," the testator wrote the date the document was to bear, and then proceeded to write his will in his own handwriting. This was held to be a valid will.
The last case before the California court decided December 15, 1928, is the case of Re De Caccia, 205 Cal. 719, 61 A.L.R. 393,273 P. 552, the will began as follows: "Of good sound Mind and God
Oakland, California, Febr. 14th, 27.
I make my Will I feel that I haven't many more years to live on this earth."
The will then continues all in the handwriting of the testator, except, the printed words, Oakland, California. The court said: "The instrument now before us resembles in many respects that held to be a valid holographic will in Re Oldham. The date follows the printed words appearing upon the instrument. It is contended by respondents, that the deceased used scrupulous care to write the date `Febr. 14th 27' on the same line and as close as possible to the printed words, `Oakland, California,' and thus manifested a clear intention to connect the printed words in the instrument with the date of its execution. . . . In the Oldham will the date was so nearly in line with the words `Los Angeles, California,' that in deciding that case we referred to them as `being followed by the date written approximately on the same line.' We do not believe that this slight difference in the two instruments in this respect would justify a decision in one upholding it as a legal instrument and in the other a decision declaring it invalid." The court then proceeded to distinguish "Re Bernard" case, which was held invalid, from the case "Re Oldham" and "Re De Caccia." The other cases "Re Rand," 61 Cal. 468, 44 Am. Rep. 555; "Re Billing," "Re Soher," "Re Thorn" and "Re Francis" are mentioned, but are not distinguished, discussed, nor cited as authority.
The late decisions indicate that California has adopted the liberal, reasonable rule of construing holographic wills.
According to the great weight of authority it seems clear that a good faith will will not be set aside because of mere irregularities as to form, but should be upheld when it is possible within the law to do so, *Page 660 as in Ex parte Walker, 15 Quebec, Pr. Rep. 15, where a holographic will was signed "Mother." And in Re Kimmel, 278 Pa. 435, 31 A.L.R. 678, 123 A. 405, where a holographic will was signed, "Father." And in the case of Wells v. Lewis, 190 Ky. 626, 228 S.W. 3, where a holographic will was signed "Ant nanie," and was held valid, and entitled to probate as the will of "Aunt Nannie Rogers." And the many other cases cited in this opinion, where the name appeared only in the exordium of the will, or on the envelope in which the will was enclosed. The statute requiring that the will be entirely written, dated and signed by the hand of the testator himself, means that the testator's name shall be signed to the will. Father or Mother is not a usual or customary signature. The signature is for the purpose of identifying the testator, and is proof of intention to make it a will, and if it is written by a father to his children and signed Father; or a mother to her children and signed Mother; or an Aunt to her nieces or nephews and signed Aunt, the identification and proof is as good, if not better, than it would be if they had actually signed their names to it, and since the reason for the rule ceases the rule itself ceases and the signature is sufficient.
The date of the will in the instant case is necessary only for the purpose of showing that it was made subsequent to the marriage of testatrix to Mr. Street. It is conceded, that the will is all in the handwriting of the testatrix; that she was competent to make a will; that she made this will in October, 1923; that there is no other will as late as October, 1923; and since the will was executed in October, 1923, and the marriage of testatrix was in 1922, the date of the will proves conclusively that the will was executed after the marriage.
Section 7321, Comp. Laws 1913, is as follows: "The code establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice."
Under this section the substantive law as set forth in the statute must be liberally construed and the practice and proceedings for the enforcement of the law or for the protection of any right thereunder must be liberally construed.
Section 5648, Comp. Laws 1913, establishes the law of this state relating to holographic wills and therefore the law of holographic wills *Page 661 as established by the code and the procedure for the probate thereof must be liberally construed.
Section 5648, Comp. Laws 1913, does not say as does the statute of Louisiana, "That in order to be valid a holographic will must be" so and so, it simply says, "A holographic will is one written, dated and signed by the testator himself." In the instant case the will was wholly written, dated, and signed by the testatrix. It is dated "Oct. 1923," and as there is no other will of a later date than 1915, and the testatrix was competent to make a will, the date in this case is sufficient.
Under § 5694, Comp. Laws 1913, "Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy."
Attention is called by appellant to the closing language of the opinion in the case of Re Hail, 106 Okla. 124, 235 P. 916, which reads as follows:
"We are constrained to hold that Oklahoma is inclined to the liberal construction or substantial compliance rule, and applying these rules to the record in this case, and the will here involved, we hold that the date `November, 1919,' is a substantial compliance with the statute. It is not intended, however, by this decision to announce the conclusion here reached as a rule by which to measure the sufficiency of the date or signature of any other holographic will than the one here involved. The construction to be placed upon our statute governing this class of wills is left open for determination wherever its construction is more imperatively demanded by the facts of some particular case, and, this being the only objection made on this appeal to the validity of the purported will of John D. Hail, the judgment of the district court admitting said will to probate was right and its judgment should be in all things affirmed."
It is claimed that this language indicates that this decision is not authority in any other case. The reason for this statement in the decision is clear. There might be a case where a will offered for probate is dated in the same manner, and another will might be presented of a later date. This decision in such case, of course, would not be authority, or it might be that the decedent was perfectly sane on the first day of November, but insane at other times during the month so there might be a question of competency involved.
In the Oklahoma case there was no question of competency or of any *Page 662 other will. In the instant case, there is no question of competency, no question of any other will, no question about the property, or that it belonged to Mrs. Street, and was hers to will to whom she pleased. It is all admitted, but because, forsooth she did not include the day of the month in the date, her will is nought, and the property she guarded and preserved so well, goes where it was not intended to go. The statute does not say that the date shall include the day of the month. It simply says, "A holographic will is one that is entirely written, dated and signed by the hand of the testator himself." In the instant case the will is entirely written, dated and signed by the hand of the testatrix. The absence of the day of the month from the date injures no one in this case and is entirely immaterial. The state through its law making power may regulate the making of wills, but it is not jealous of this power. It recognizes as fundamental the principle that laws are made for the people and the promotion of their general welfare. Its supreme obligation and greatest concern, is the enactment and enforcement of legislation that will enable us to live in safety, to acquire property honestly, to protect our property against the encroachments of wrong and to make it simple and easy to dispose of as we wish before we die. The judgment of the District Court and the County Court should be affirmed.