delivered the opinion of the court.
S. A. M. Sadler, at the time of his death, occupied a room at the house of Mr. Blake, his tenant, where he died about 12 o’clock M., on the last Saturday of January, 1897. He was carried to his burial on the following Monday, and on the evening of that day some papers belonging to him were taken from a table drawer used by him, and other of his papers were taken from his trunk, which were found at the Blake place; and in the room in which he died, upon the mantel -piece, behind a vase, a piece of paper folded was found, upon which unfolded was written these words: “ Want Sarah relativds have all property. S. A. M. Sadler.” This instrument, for the purposes of this suit, is admitted to have been wholly written and subscribed by said S. A. M. Sadler, and it was, upon the ex parte petition of John B. Young, probated in common form in the chancery court of Monroe county, before the clerk thereof, as the last will'and testament of S. A. M. Sadler, deceased, and letters testamentary thereon were granted to said Young. S. A. M. Sadler died possessed of a real and personal estate of the value of several thousand dollars. Young, the administrator evm testamento crnnexo, had disposed of all the personal property of the decedent, and this suit involves only the real property of which he died seized. After the clerk of the chancery court of Monroe county had admitted said instrument to probate, and before his action was confirmed by said court in session, Mrs. Wark and W. H. Sadler, two of the present complainants, filed objections to the probate of said instrument, but before taking any other steps therein withdrew said objections when the probate in common form of said instrument as the last will and testament of S. A. M. Sadler, *841deceased, was completed. Thereafter said Mrs. Mary E. Wark and W. H. Sadler, and ten others, the complainants, heirs at law of S. A. M. Sadler, deceased, filed this bill against John R. Young and five others, devisees claiming under said alleged will, and seeking to cancel said instrument as a will as forming a cloud upon their title to the property described in the bill and claimed by them as the heirs at law of said decedent, praying for an issue devisavit ml non, if necessary, or any other appropriate relief..
The respondents claimed as to Mrs. Wark and W. H. Sadler that the matter was res judicata by reason of the probate of said instrument as hereinbefore stated, and specially set up and pleaded said instrument as being the last will and testament of the decedent. The proof showed that S. A. M. Sadler, deceased, inherited all, or nearly all, of the property in controversy from his wife Sarah, who died February 7, 1895; that his wife in her lifetime was desirous of making a will and of devising the property to her own blood kin in exclusion of the relatives of her husband, and had been dissuaded therefrom by a promise from her husband that at his death the property should go as she wished. It was also shown that Sadler, after the death of his wife, had several times expressed an intention of giving the property to her relatives.
The chancery court' canceled the document as a will and annulled the probate thereof.
1. We think the plea of res judicata was. rightly overruled. It was optional with Mrs. Wark and W. H. Sadler whether they Avould make the contest in limini or after the instrument had been probated in common form. Unless all the heirs at law of Sadler had been made parties to the proceeding to establish the instrument as his will, the action of the court thereon would not bar them of making any contest they might choose concerning it.
2. The instrument probated in common form as the last will and testament of S. A. M. Sadler, deceased, is neither in form *842nor substance a will. It does not purport on its face to be a declaration of what he intends shall be the disposition of his property after his death. ,
There is not a word in the instrument of a dispositive character, nor was any collateral evidence given of the intention of the writer in respect to the instrument. If he had written on this paper or said of it: £ £ This is my will ’ ’ or other like words, it would be taken as a legal will. The paper is not dated, and except from' its being found within the room in which he died there is nothing to indicate that it was recently written.
There was ample evidence that the decedent intended that his property should go to his wife’s relatives; he had several times declared such tó be his intention; but there is not a scintilla of evidence that he meant this paper to be an expression of such intention. We might readily 'conjecture that such was his purpose, but we cannot proceed upon mere conjecture, and the evidence—even a particle of evidence—that Sadler meant the paper to have effect as his will is wanting. ££ It is not for the courts to declare that to be a testamentary disposition of his estate where it does not clearly appear that such was the intention of the individual executing it.” In re Richardson, 94 Cal., 65.
£ £ If the instrument was not testamentary either in form or substance (none of the gifts in it being expressed in testamentary language, or being in terms postponed to the death of the maker), and if no collateral evidence is adduced to show that it was intended as a will, probate will not be granted of it as a testamentary document.” 1 Jarman on Wills, *24.
Inasmuch as there is nothing on the face of the paper nor in the evidence to show that this identical instrument was meant by Sadler to be a disposition of his property after his death, we think the court rightly adjudged it to be annulled.
Affirmed.