(dissenting).
I am compelled to dissent in this case and in order that there be- no misunderstanding about this instrument which the majority opinion says should be admitted to probate, I am setting out a photostatic copy of the front and back -thereof:
*933
*934
*935Both the County Judge and the District Judge denied this writing probate.
Under my conception of the law of wills, I would never agree that the foregoing instrument should be admitted to probate.
In the first place it was not executed according to Section 55, 84 O.S. 1951, which is as follows:
“Every will, other than á nuncupative will, must be in writing; and every will, other than a holographic will and a nuncupative will, must be executed and attested as follows:
“1. It must be subscribed at the end thereof by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto.
. “2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority.
“3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and,
“4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator’s request and in his presence. R.L. 1910, § 8348.”
It is well known that many instruments offered for probate have been denied admission to probate because not properly executed in accordance with statutory requirements. In the case of In re Abrams’ Will, 182 Okl. 215, 77 P.2d 101, 103, this Court said:
“It is to be regretted that the intention of the testatrix is defeated by her failure to observe the statutory requirements, but to hold otherwise would in effect be to let down the bars to evils against which the statutory provisions are aimed. * * *• ”
In In re Stover’s Will, 104 Okl. 251, 231 P. 212, 213, the Court quoted the following from 28 Ruling Case Law, page 108, paragraph 60:
The formalities to be observed in the execution of wills are simple and calculated to prevent frauds and uncertainty in the testamentary dispositions of property, and where a Legislature has seen fit to impose certain requirements looking to the execution of a will, compliance with such requirements is necessary to the validity of any instrument offered as a testament. 'No essential formality may be dispensed with, and a failure to comply with formalities prescribed for the prevention of fraud is not excused by showing that in the particular case under consideration there was no fraud. * * * >»
In Hill v. Davis, 64 Okl. 253, 167 P. 465, 468, L.R.A. 1918B, 687, it is said:
“The right to dispose of property by will is a creature of the statute. The Legislature has the power, in granting the right, to determine and prescribe the form and manner in which it shall be exercised. * * * The provisions of the statute quoted are mandatory, * * *."
In In re Stover’s Will, supra, this Court held:
“Where a nonholographic will is of-' fered for probate, and the evidence fails to show that the testatrix declared or published the instrument as her will in the presence of the subscribing witnesses, and which fails to show that the will was signed, or acknowledged by the testatrix to have been signed by her or by her authority in the presence of the subscribing witnesses, the proponents have not established that the will was executed according to law, and the probate thereof should be denied.”
See also 68 C.J., Wills, § 366.
The decision in Reeves v. Duke, 192 Okl. 519, 137 P.2d 897, 147 A.L.R. 634, is sufficient to support the theory that the testator considered both his own writing and the typewritten portion as his will where he refers to it as “this will.”
This instrument which the majority opinion will admit to probate is not- a holo*936graphic will because it is not entirely in the handwriting of the testator as is required by Section 54, 84 O.S.1951, which is as follows :
“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 or out of this State, and need not be witnessed. R.L.1910, § 8347.”
Counsel for the proponents of the purported will have come up with the ingenious idea that this instrument which is partly in typewriting and partly in handwriting is valid and should be admitted to probate for the fantastic reason that the handwriting is a codicil to the typewriting. It is my position that the typewritten part is not a will and the handwritten part is not a codicil. The handwritten part is only a continuation of the typewritten part and that combined, they constitute a will which was not attested and therefore cannot properly be admitted to probate.
The typewritten part of this unattested will is not signed, dated nor witnessed. It was not finished with a period. A casual inspection reveals that it is not in itself a will. Without the handwriting it is only a scrap of paper. The majority calls it a will on. the strengh of Loveren v. Eaton, 80 N.H. 62, 113 A. 206, and Knoll v. Hart, 308 Pa. 223, 162 A. 228. Now this Loveren v. Eaton is cited in 68 C.J., Wills, § 1, which section defines wills. Most of the cases say that “a will” is the legal declaration of a .man’s intentions which he wills to be performed after his death. The writer of this will knew it was not complete when the typewriting stopped. He wrote:
“To my brother James I give ten dollars only. This will shall be complete unless hereafter altered, changed or rewritten.
. “Witness my hand this April 6, 1947. Easter Sunday, 2:30 P.M.
“D. G. Johnson
“Dexter G. Johnson.”
There was nothing legal about the typewriting until the handwriting was placed on. the sheet of paper.
There is nothing about the handwriting that looks or reads like a codicil. It is just the part of the will which will had to be witnessed. It certainly dees not look like the wills the testator prepared for his clients. There was nothing about the typewritten part to indicate that that was all the testator was going to write.
In 68 C.J., Wills, § 264, incomplete instruments are discussed. We quote from that Section:
“An instrument may be so incomplete and unfinished that courts will not declare it to be. a will. The presumption is against an incomplete and unfinished will, some cases holding that an instrument is not a will, where the testator intended some further act to complete it. To be effective as a will, the instrument must appear to be so far complete as to have left no part of the testator’s intention unexpressed. * * * ”
It is further to be noted that there was nothing in the handwriting which referred to a previous will. It spoke of “this will” and not of a previous will. There is nothing about this handwriting ⅛> indicate that the testator intended it to be a codicil. He was completing his will with the handwriting.
I think he intended the typewritten portion to be a part of his will, not the completed will. A will is to be interpreted by what is found in its “four corners” and there is nothing to indicate that the testator intended it to be anything but one instrument. Parol or extrinsic evidence should not be admitted to show the contrary when the signed will is one instrument.
Under no circumstances should this be considered a codicil and I can never subscribe to the proposition that a holographic codicil will validate as a will an instrument that is typewritten, unfinished as to content, undated, unsigned and unattested. Not a case has -been cited where a holographic codicil validates an instrument as a will which was not dated, signed or attested and no reference made in the purported codicil to the preceding will. The majority opinion cites Hurley v. Blankinship, 313 Ky. 49, *937229 S.W.2d 963, 21 A.L.R.2d 817, and the note thereunder. In the Hurley case the will under consideration was a holographic will which was not signed, but the testator in additional writing specifically stated that the writing was a codicil and signed it. Beall v. Cunningham, 3 B.Mon. 390, 42 Ky. 390, 39 Am.Dec. 469, cited in the Hurley case had to do with the republication of a revoked will. There the codicil was validly executed and referred to the paper as his will. In the English case of Doe v. Evans, 1 Cromp. & M. 42, 149 Eng.Reprint 307, reference to which is found in the note in 21 A.L.R.2d 829, the will was not signed. The codicil, two weeks later was signed and attested and expressly referred to the unexecuted will on the same paper.
In the case of Rogers v. Agricola, 176 Ark. 287, 3 S.W.2d 26, the will was typewritten, dated, signed but attested by only one witness. Later a holographic codicil was signed and dated and made reference to the typewritten will. I again repeat that it is to be remembered that the typewriting in question was not signed, dated or witnessed.
The two New Jersey cases of McCurdy v. Neall, 42 N.J.Eq. 333, 7 A. 566, and Smith v. Runkle, 86 N.J.Eq. 257, 98 A. 1086, are different from the case at bar. In the McCurdy case the codicil was executed with all due formalities and proved to have been so executed and expressly confirmed the will. From the report of Smith v. Runkle we cannot determine how the codicil was written but do not think it was holographic. The Supreme Court of Kentucky refused to approve a will under like circumstances in Sharp v. Wallace, 83 Ky. 584, and said:
“An unattested codicil, although wholly in the handwriting of the testator, cannot bring into operation as a will a paper which is neither in the handwriting of the testator nor attested, as required by the statute.”
In Page on Wills, Section 545, Vol. 2, the rule is stated as follows:
“The holographic will is an apparent, though not a real exception to the general rule that a codicil, if properly executed, revives a prior will. Since a holographic will must be entirely in the handwriting of the testator, a holographic codicil, which is not attested, does not republish a prior will which is not entirely in the handwriting of testator. * * * ”
When a codicil is properly executed it becomes a part of the will and together they are to be construed as one instrument and this is the reason a validly executed codicil will vitalize a will which has not been executed properly, but a holographic codicil which is not witnessed cannot validate a typewritten instrument as a will which has not been dated, signed or attested. See Leech’s Estate, 236 Pa. 57, 84 A. 594, Sharp v. Wallace, supra, and 57 Am.Jur. Wills, Section 627. To rule otherwise, will permit a writing which is not entirely in the handwriting of the testator to be admitted to probate sans attestation. This should not be the law.
The Supreme Court of New York will not permit a properly executed codicil to republish a will which was defectively executed. By no means should this Court adopt a rule which would permit a holographic codicil to republish a defectively executed typewritten will.
No State has gone as far as the majority has in this case. I submit that this would be a poor rule to adopt because it would open the way for too much forgery. Experience has taught the Legislature that safeguards must be thrown up in so far as the execution of wills are concerned.
Something is attempted to be made of the fact that the testator was a lawyer but that would prove nothing as many eminent lawyers have failed to properly prepare and execute their own wills. The will of Samuel J. Tilden is a notable example.
This will was one complete will unattested and therefore not admissible to probate and to give this will the construction that the majority has placed upon it is wholly unwarranted. Why make a mockery of the plain provision of our statutes? Property may only descend by will when the will is executed in conformity with the statutes.
I dissent.