I do not agree with the result reached in the foregoing opinion. I think a holographic will may, by reference, incorporate another instrument which is not entirely in the handwriting of the testator. This court, in line with the overwhelming weight of authority elsewhere, has held that a holographic will may by appropriate reference incorporate a paper not of a testamentary character and not wholly in the handwriting of testator so as to make it a part of the holographic will. This was so held in In re Noyes' Estate, 40 Mont. 231, 106 P. 355,357, where this question was under consideration regarding an instrument *Page 524 not in the handwriting of the testator and the court said: "So, also, a paper not of a testamentary character is to be construed with one having that character, whenever the latter has, by appropriate reference to the former, incorporated it within itself, thus giving it also a testamentary character. Barney v. Hayes, 11 Mont. 99, 27 P. 384; Id., 11 Mont. 571, 29 P. 282, 28 Am. St. Rep. 495; Estate of Skerrett, 67 Cal. 585, 8 P. 881; [In re] Estate of Plumel, 151 Cal. 77, 90 P. 192, 121 Am. St. Rep. 100."
That this was not an accidental statement incorporated in the opinion of the court is shown by the fact that the court discussed the matter of showing by extrinsic evidence what existing document the testator referred to. On this point the court said: "The reference must be unmistakably the testator's. The description of the paper referred to, if complete and definite, dispenses with evidence to establish its identity. It is only when the description is incomplete that extrinsic evidence may be resorted to; for in Allen v. Maddock, in this connection, it is said: `A reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not yet written, or where the description is so vague as to be incapable of being applied to any instrument in particular; but the authorities seem clearly to establish that where there is a reference to any written document, described as then existing, in such terms that it is capable of being ascertained, parol evidence is admissible to ascertain it, and the only question then is whether the evidence is sufficient for the purpose.' So the rule is generally understood and applied."
The court in the Noyes case (Mr. Justice Holloway dissenting) held that the letter in question did not properly refer to any paper and hence no document was to be considered as incorporated in and made a part of the letter. But the case holds squarely that a document properly referred to may be considered as part of the holographic will.
Cases from other jurisdictions holding that existing documents not entirely written, dated and signed by the testator may be considered as a part of the holographic will when properly *Page 525 referred to, and that parol evidence may be resorted to to identify the instrument, are the following: In re Miller's Estate, 128 Cal. App. 176, 17 P.2d 181; Simon v. Grayson,15 Cal. 2d 531, 102 P.2d 1081; In re Estate of Dimmitt,141 Neb. 413, 3 N.W.2d 752, 144 A.L.R. 704; In re Anthony's Estate, 21 Cal. App. 157, 131 P. 96.
Here the letter in question stating "Well Ida if anything happen to me you will find all my bisnes Fix and in the Citszen bank" and "made Ida over every thing," shows plainly that Mr. Watts wanted his sister Mrs. Ida Choate to have all of his property. The documents which were referred to in the Citizens bank were the deed and a bill of sale made out to Mrs. Choate, both being acknowledged before a notary public. He thought these instruments accomplished the same purpose as a will. The fact that technical rules of law prevented the deed and bill of sale standing alone from accomplishing a transfer of his property at death is immaterial.
As was said by the court in Heaston v. Kreig, 167 Ind. 101,112, 77 N.E. 805, 809, 119 Am. St. Rep. 475: "The doctrine is, that when a man has expressed clearly his intention to dispose of his estate, and has taken an ineffectual mode of doing it, yet if the instruments can be construed in another manner, so as to effectuate his purpose, the ceremony is a matter of form, and the substance shall be carried into execution, if it may be law." And the court in that case, quoting from Lord Hale, said: "That the judges ought to be curious and subtle to invent reasons and means to make acts effectual, according to the just intent of the parties * * * The judges in these later times (and I think very rightly) have gone further than formerly, and have had more consideration for the substance, to wit, the passing of the estate, according to the intent of the parties, than with the shadow, to wit, the manner of passing it." And see In re Hengy's Estate, 53 Idaho 515, 26 P.2d 178.
This case is not comparable to that of In re Major's Estate,89 Cal. App. 238, 264 P. 542, relied upon in the majority opinion, for in that case there was no deed or bill of sale or *Page 526 other instrument aside from the letter which merely expressed the idea of the writer as to where he wanted his property to go. There was no affirmative action taken to carry out that desire as in this case.
In the case of In re Kisling's Estate, Cal.App., 156 P.2d 57, the letter in question was not entirely written by the decedent. Likewise it did not by reference adopt a deed and bill of sale as here. The writing was addressed to a lawyer and on its face showed that the writer desired to have the lawyer draft a will and this showed plainly that the letter itself was not to operate as a will.
The majority opinion quotes from the case of In re Estate of Button, 209 Cal. 325, 287 P. 964, 965, to the effect that in order for a writing to be testamentary it must appear that it was intended to be effective at death. In that case a letter by a woman to her former husband containing this statement, "You can have the house on 26th ave. and all the things of value so you won't be out any money on burying me," was held to be a holographic will so as to disinherit two sons of the testator. In the instant case it is clear that Mr. Watts desired the deed and bill of sale, being the instruments referred to in the letter, to become effective only after death. Other cases relied upon in the majority opinion which point out that certain letters were insufficient to constitute a holographic will were cases in which a letter alone was relied upon and where no deed and bill of sale had actually been made, as here.
The risk in social correspondence pointed out in Thompkins v. Randall, 153 Va. 530, 150 S.E. 249, a case relied on in the majority opinion, will not be affected here because in confirmation of the intention manifested by the letter stand the deed and bill of sale both duly acknowledged before a notary public. This case is far beyond the stage of social correspondence.
The majority opinion quotes extensively from the case of Brooker v. Brooker, 130 Tex. 27, 106 S.W.2d 247, 249, where the testator made a formal will one paragraph of which stated that "I have conveyed, or shall hereafter convey or may *Page 527 at any time convey Real Estate by deed to take effect after my death to my sister, Alice Brooker." The court held that deeds could not be thus incorporated in a will by reference. I do not agree with the soundness of that opinion. The court reasoned that the testator might have a number of deeds thus referred to in a will and later destroy one or more of them and as the court stated "no one would be the wiser." No one but the testator has any right to say how his property shall be disposed of after his death, if he has exercised the right to speak on the subject. I think it is proper for a testator to adopt by reference in a will any documents he sees fit and if he is so disposed he may later destroy one or more of them and that would be nobody's business but his own. I realize that many courts deny the right to adopt deeds by reference when the deeds have not been delivered as here.
On the contrary, there is an equal number of cases taking the opposite view. They are listed in the note in 110 A.L.R. commencing on page 268 and need not be repeated here. When the authorities are about evenly divided on the point, as we find them on this question, I think we should follow those that carry out rather than defeat the plain intention of the testator.
Holographic wills need not be in any particular form. It is enough that the intention is made plain. Barney v. Hayes, supra; Dahmer v. Wensler, 350 Ill. 23, 182 N.E. 799, 144 A.L.R. 709. Here the deed and bill of sale were in existence and in the Citizens bank when the letter was written. Their authenticity is not questioned. The letter was wholly written, dated and signed by John Watts and the jury so found. Plainly he wanted his sister Ida Choate to have all of his property. Just why should Mrs. Choate be penalized for the mistake of Mr. Watts in not hiring a lawyer to express his intention with more elegant phrases and in better grammatical style? Mrs. Choate was the only member of his family with whom Mr. Watts corresponded. His neighbors with whom he visited never heard him speak of any relative except this sister, Mrs. Choate. He was fond of her and corresponded with her over a period of 40 or 50 years. She *Page 528 visited with him on several occasions, staying with him months at a time. He also visited her in her home in Missouri and though two brothers lived a short distance from her home he never visited them, nor did they visit him. Mrs. Choate had looked after their mother and she is the only one in the family who ever did anything for Mr. Watts. It was perfectly natural that he should desire that his property go to her. This court, it seems to me, should not thwart his purpose. I think the district court was right in admitting the instruments to probate as the will of Mr. Watts and that the judgment should be affirmed.