Plater v. Groome

Tuck, J., dissented, and delivered the following opinion : If this were a new question I might, perhaps, agree that courts of justice had already gone too far in establishing imperfect and unexecuted papers as wills. I can perceive no difference in principle between this case and Brown vs. Tilden, 5 H. & J., 371 . The authorities say, that a testamentary paper, prepared by another person than the testator, but at his request and according to his directions, will have the same effect as if written by himself. The question in such cases, is always whether it has been adopted by the testator as a testamentary disposition.

There is no sufficient reason why an instrument, not signed but adopted by other acts, should not operate to pass personalty where land is also devised. ¹⁴² when the same paper, if merely signed but not attested, would so operate. This point is fully discussed by Mr. Justice Johnson, in Tilghman vs. Steuart, 4 H. & J., 168 . In 5 H. & J. 372 , the court said, that the “codicil was a valid disposition as soon as it was written, folded up, and put in a place of security.” This was done in regard to the paper under consideration. See also 1 Har. and McH., 509.

In the case of Watts and Leroy, 4 Wend., 168 , a will of realty and personalty was admitted to probate to pass the personalty, although it was not signed by the testator but was put away among his valuable papers. I think that upon the authorities the order of the orphans court should be affirmed. Mason, J., delivered the opinion of this court. Charlotte L. Edmondson duly executed her last will and testament, on the 22nd day of December 1849, by which the appellant, John R. Plater, was appointed sole executor.

In November 1850, the testatrix, Mrs. Edmondson, caused a codicil to her will to be prepared by her counsel, R. B. Carmichael, Esq. This alleged codicil contains bequests of both personal and real estate. The will, codicil, note from Mr. Carmichael to the testatrix, and an old revoked will, were found, after her death, in a trunk where she kept money, valuable papers and other articles. The codicil never was formally executed nor signed, nor were the blanks filled up.

Mr. Carmichael proves, that the codicil was prepared by him in conformity with the directions of Mrs. Edmondson ; and it is admitted as a fact in the case, that she was a lady of remarkable intelligence and strength of mind, familiar with the transaction of business, and had executed several instruments of writing. The codicil was admitted to probate as a valid testamentary paper, and we are required upon this appeal to decide whether it was properly thus admitted to probate. It is clear that real estate could not pass under such a testamentary paper as the one now before us. A will to convey lands must be perfect on the face of it, and no defect in its ¹⁴³ execution can be aided or supplied by parol proof.

It must not only be intended as his last will and testament by the testator, but must be executed with all the forms and solemnities required by law. It is equally true, that the same strictness is not required in a will of personal property.- But to constitute even a good will for personal property, the paper must be cither complete on its face, or it must appear, if incomplete or defective, that it was intended by the testator that it should operate as his will in its unfinished and imperfect state', or that he was prevented from completing the contemplated formalities by being overtaken by sickness or death, or some other casualty. In all cases of imperfectly executed testamentary papers like the present, it must appear that the deceased possessed the animum tesiandi at the time it was written, and that he intended and supposed the paper as it stood to be his will, without looking to anything further to be done in order to perfect it. Tilghman vs. Steuart, 4 Har. and John., 173.

Upon these general principles, which we think are sustained by all the authorities, the present controversy must be settled. We are then to inquire, from the facts and circumstances brought to our view, whether the codicil before us was supposed to be perfect by the testatrix, and was designed and regarded by her as sufficient to pass the property designated therein, in the condition in which it was found after her death. It is not contended that the present paper is void merely because of its defective or imperfect character, but because of the absence of evidence, both intrinsic and extrinsic, to show that it was designed by the testatrix to be her last will and testament in the condition in which she left it. While we concede that the same will may be good for personal property and yet bad to carry real estate, still the fact that the will is thus imperfect, even in part, if known to be so by the testator, is a powerful circumstance to show that the deceased did not intend the- instrument to operate as a will for any purpose.

It tends to show, that the paper, not being considered as complete, was therefore not intended to- operate as it then stood, ¹⁴⁴ even apon the personalty. The reasoning of Judge Martin in the case of Tilghman vs. Steuart, is equally applicable to this case. He says: “As this paper contains dispositions of real as well as personal property, it is fair to conclude, the testator intended it should operate equally upon the one as the other, and not that it should be a go'od will as to the personal and not the real estate. It is clear, that he could not intend it