I respectfully disagree with the decision reached in the majority opinion of this Court in this case, for the reason that I think the words written and signed by Eva B. McVicker, in her own handwriting, "For Linnie Furman in case of my death. Eva B. McVicker", are legatary in character. The postal savings certificates being dated after the date of the McVicker letter, which was probated as the will of the decedent, Eva B. McVicker, were placed in the sealed envelope after that letter was written.
I agree with the majority opinion that in the absence of any reference to the contents of the envelope in the writing thereon, the cases cited by counsel for plaintiff in error construing wills, referring to property "contained" in some receptacle or disposing of the "contents" of a house, desk, safety deposit box, envelope or other container, are inapplicable. Likewise the doctrine of the incorporation of separate papers in a will by reference thereto, briefed and argued by counsel, has no application to this case.
This case is simply one where the words used by the testatrix indicate that she intended to have the written direction contained on the envelope effective at the time of her death. The writing expressly so states. Of course, as stated in the majority opinion "A valid disposition of personal property requires a definite subject and object, and if either is uncertain, the defect is fatal. Pack v. Shanklin, supra, [43 W. Va. 304,27 S.E. 389]," and the other cases to like effect cited in the majority opinion. But here the object of the testatrix's bounty, namely, Linnie Furman, is expressly stated in the writing on the envelope, and the only question before us is whether the personal property involved is sufficiently identified to permit its passing by testamentary bequest as a codicil to the testatrix's last will and testament. If it has any testamentary character, it will necessarily serve as a codicil to the will as distinguished from testatrix' will itself. I say this because the postal *Page 714 savings certificates, dated after the date of the McVicker letter, necessarily were sealed in the envelope after the date of the letter.
I am of opinion that the securities inclosed in the envelope were sufficiently identified so as to make the words written thereon, together with the contents thereof, testamentary within the meaning of our statute. In re Glass' Estate, (Pa.)1 A.2d 239, 117 A.L.R. 1322, it was held that the writing on the face of an unsealed envelope containing securities belonging to the writer, over which she had exercised control until her death, reading: "Property of Charles C. Gearhart * * * To My Executor — Please deliver enclosed to Mr. Gearhart at the above address", and signed by the purported testatrix, followed by a notation written thereon "Held for safe keeping", is testamentary in character, and was properly admitted to probate. In Warnken v. Warnken (Tex.Civ.App.),104 S.W.2d 935, it was held that an envelope containing a bond, stating in the handwriting of the deceased that the envelope was to be opened at his death, and that the content thereof "is" a gift to his wife, is testamentary in character, though the envelope was kept in the possession of the decedent, who collected interest on the bond during his lifetime. In Fosselman v.Elder, Ex'r, 98 Pa. 159 (2 Outerbridge), it was held that a sealed envelope indorsed in decedent's handwriting "Dear Bella, This is for you to open", together with a promissory note for two thousand dollars and a paper in testatrix' handwriting: "Lewistown October 2, 1879. My wish is for you to draw this $2000 for your use should I die sudden.", and signed "Elizabeth Fosselman" in her own handwriting, constituted a valid testamentary disposition of the note operating as a codicil to the testatrix's will. There being no showing of fraud in the instant case, I think this record fully discloses that Eva B. McVicker intended by the exercise of her testamentary rights to bequeath the securities in question to Linnie Furman, and that the method by which she undertook to make this bequest would give opportunity *Page 715 for fraud is of no moment. That opportunity is ever present in the case of testamentary dispositions.
I would affirm the judgment of the Circuit Court of Monongalia County.
I am authorized to say that Judge Kenna joins with me in this dissent.