Ellison v. Clayton

Bond, O. J., delivered the opinion of the Court. The controversy in this case is on the propriety of the orphans’ court’s receiving and probating as a will the.following letter written by an owner of four bank deposits to the depositary: “August 18, 1931. “Delaware Trust Company, Middletown, Delaware. “Gentlemen: At this date I have four accounts in your bank, as follows: “Checking Accounts. “ ‘Charles S. Ellison, Sr.’ “ ‘Charles S. Ellison, Sr., Earm Account.’ “Savings Accounts. “ ‘No. 1103-Charles S. Ellison.’ “ ‘No. 1469 — Charles S. Ellison, Special Account.’ ³⁷ “I desire that to each of these accounts he added the name of 'Mary E. Clayton/ my daughter. I desire the accounts to be changed to read, 'Charles S. Ellison and/or Mary E. Clayton/ in each and in all of the four accounts. “It is understood that I am to sign all checks so long as I am physically able, and the change in the accounts is made with the express intent of the balances becoming automatically the property of Mary E. Clayton upon my decease. “Charles S. Ellison. [Seal] “Witness “[Signed] Clarence P. Weber, “[Signed] W. Harman Money.” It appears from a petition and an answer filed in the orphans’ court that the writer of this letter, Charles S. Ellison, Sr., had left a will in the usual form, dated on November 21st, 1928, with a codicil attached under date of January 22nd, 1929; and that the will and codicil were duly probated shortly after the testator’s death on November 5th, 1931. On February 10th, 1932, the letter was offered for probate as a codicil to the will, and, upon a caveat by the executors named in the will, that is, by the present appellants, an issue for determining whether the letter was or was not a testamentary paper was sent to the circuit court for trial by a jury.

The jury answered that it was a testamentary paper, and from rulings on the trial of the issue this appeal is entered. The docket entries and a reference in the appellee’s brief show that testimony was taken on the trial, and that the jury was instructed by the court on the principles which should control their decision, but the bill of exceptions to bring up trial proceedings on appeal contains none of the testimony and none of the instructions, and no note of any ruling except that on an offer of the letter in evidence. It