Wills: Omission of Date in Holographic Will

Source: Michigan Law Review, Vol. 22, No. 8 (Jun., 1924), pp. 854-855
Published by: The Michigan Law Review Association
Stable URL: https://www.jstor.org/stable/1276881
Accessed: 01-04-2020 04:28 UTC

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854 MICHIGAN LAW REVIEW

reasoning
reasoning stated
stated
in a footnote
in a footnote
to Garvey
tov.Garvey
Hibbert, v.
I9 Hibbert,
Ves. 125, it I9
holds
Ves.
that
125, it ho
it
it isisnot
notapplicable
applicable
to thetoprincipal
the principal
case. According
case. According
to this footnote,
to this
wherefootnot
particular
particular members
membersof a class
of aareclass
intended
are intended
to take and to
no take
way isand
known
no to
way is k
determine
determine who
who
thosethose
particular
particular
membersmembers
are, a mistake
are,
is apresumed
mistakeand
isthe
presumed
gift and
considered
considered as being
as beingto all to
theall
members
the members
as a class inasorder
a class
not in
to defeat
orderthe not to de
gift.
gift.AtAt this
this
pointpoint
the court
the points
courtout points
that since
out inthat
the since
principal
in case
thethe
principal
particular
particular members
members who were
whointended
were intended
to take areto known,
take therefore
are known, the doc-
therefore
trine
trineofof that
that
casecase
is notisapplicable
not applicable
to it. Buttothis
it.does
Butnotthis
coincide
doeswith
notIncoincide
re wi
Sharp,
Sharp, supra,
supra,which
which
the court
the incourt
the principal
in the caseprincipal
approvescase
and in
approves
which it and in
is
is laid
laiddown
downgenerally
generally
that ifthat
a class
ifisaby
class
the testator
is by the considered
testatorto contain
considered
a to c
certain
certain number
number and is
andintended
is intended
to take, ittowill
take,
be permitted
it will beas permitted
a class to takeas a class
the
thewhole
wholeregardless
regardless
of a misconception
of a misconception
as to the number
as to the
it contains.
number In sim-
it contains.
ilar
ilarcases
cases
thethe
American
American
courts courts
have nothave
hesitated
notto hesitated
give effecttoto give
the intention
effect to the
of
ofthethe
testator,
testator,
and have
and refused
have refused
to let theto
fact
letthat
thehefact
namesthat
someheof names
the classsome of
affect
affect thethe
result,
result,
as theascourt
the incourt
the principal
in the case
principal
does. Seecase
RooD,does.
WILLs,See RooD,
?479;
?479;Schaffer
Schaffer v. Kettell,
v. Kettell,
14 Allen14(Mass.)
Allen 528.
(Mass.)
In the 528.
principal
In the
case principal
the ca
statement
statement that
that
the "personal
the "personal
property property
of my lateof wife"
myshall
lategowife"
to the shall
three go to th
named
named children
children"by my"bylate
my wife"
latewould
wife" seemwould
to show
seemconclusively
to showthat conclusively
he
intended
intended that
that
theythey
shouldshould
have herhave
personal
her effects
personal
as a effects
class, and as
theafact
class, and
that
thatthey
theywere
weredescribed
described
by name byas name
well as as
number
well should
as number
defeat this
shouldin- defeat
tention.
tention. There
There
was was
some some
EnglishEnglish
authorityauthority
to sustain this
to sustain
position. See
thisShawz
position. See
v.
v. M'Mahon,
M'Mahon, 4 Dru.
4 Dru.
& War.& (Ir.)
War. 431,
(Ir.)
438.431, 438.

WILLs-OMIssION or DATE IN HoLoGRAPHIC WILL.-The testator made a

holographic will complete in every respect except that the day of the month
was omitted from the date. The statute required that a holographic will be
"written, dated and signed" by the testator. Held, that a substantial compliance
with the statute was sufficient and that the omission of the date did not invali-
date the will. In re Hail's Estate (Okla. I924) 220 Pac. (Adv. Sheets) 456.
The right to make a testamentary disposition of property is not a natural
right but is a creature of statute. Gibson v. Van Syckle, 47 Mich. 439; In re
Walker's Estate, Io Cal. 387. See St. 32 Hen. VIII, ch. I. This results in
courts requiring a strict compliance with the provisions concerning execution.
In re Walkers Estate, ante. Particularly is this true in relation to holographic
wills where they do not require attestation, it being felt that inasmuch as no
witnessing is required the door will be opened to fraud unless strict adherence
to the formalities of execution is required. Warwick v. Warwick, 86 Va. 596.
Most statutes provide that the holographic will shall be "written, dated and
signed" by the testator. See Rev. Code of Montana, ?6981; Rev. Codes of
N. D. ?5092. A will partly printed and partly in the handwriting of the tes-
tator is therefore not good as a holographic will. In re Wolcott's Estate, 54
Utah 165; Estate of Thorn, I83 Cal. 512. Neither is the statute satisfied by a
will lacking a date. Estate of Martin, 58 Cal. 530. Again, the dating of a will
by filling out a printed letterhead is not sufficient as the will is not totally in
the handwriting of the testator. In re Noyes' Estate, 40 Mont. I9o; Estate of
Plumel, 15I Cal. 77. California and Louisiana have held that dating means
the day, month and year and that the omission of any of these makes the will

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 RECENT IMPORTANT DECISIONS 855

invalid
invalidasasa a
holographic
holographic will.will.
Estate
Estate
of Anthony,
of Anthony,
21 Cal. App.
21 Cal.
157;App.
Heffner
157;v.Hef
Heffner,.
Heffner,.4848 La.La.
Ann.
Ann.
Io88.
Io88.
On the
On other
the other
hand California
hand California
has held has
thatheld
a th
holographic
holographic will
willdated
dated
"4-14-07"
"4-14-07"
is good.
is good.
Estate Estate
of Chevallier,
of Chevallier,
I59 Cal. i61.
I59 C
Contra
ContraInInrere Beird,
Beird,145145
La. 756.
La. 756.
In theIninstant
the instant
case thecase
court
therefused
court to
refused
follow to
the
the prior
priordecisions
decisions of of
the the
Louisiana
Louisiana
court court
and California
and California
courts andcourts
held that
and he
aa substantial
substantial compliance
compliance withwith
the statute
the statute
was sufficient.
was sufficient.
It is difficult
It is difficul
to see
how
how the
themere
mere omission
omissionof the
of day
the ofdaytheofmonth
the month
could becould
the basis
be the
of any
basis o
fraud,
fraud,and
andononthe
the
other
other
handhand
to hold
to hold
the will
theinvalid
will invalid
on such on
technical
such technical
grounds g
would
wouldbebetoto
defeat
defeat
thethe
testamentary
testamentary
intentintent
of the of
testator.
the testator.
There remains
Therethe
rema
argument
argumentofof
the
the
strict
strict
constructionist
constructionist
that itthat
is better
it is that
better
the that
statute
thebestatute
strictly be s
construed in order that the rules may guide future makers of wills. This
seems amply answered by saying that to the mind of the layman, who by the
way usually draws a holographic will without professional assistance, month
and year is as much a "dating" as is day, month and year. The principal case
certainly seems sound. See also 21 MICH. L. REV. 485.

WILLS-SIGNATURE OF TESTATOR.--A holographic will, in the form of a

letter, was simply signed "Father". Held, that it was apparent that such was
intended as a signature and that the statute requiring a will to be signed was
satisfied. In re Kimmel's Estate (Pa. I924) 123 Atl. 4o5.
Under most statutes a will is invalid unless signed by the testator; Estate
of Tyrrell, 17 Ariz. 418, or by someone at his direction. Herbert v. Berrier, 8I
Ind. I. It is usually said that any mark signed to the will with the intention
that it shall constitute the signature of the testator is sufficient. Sheehan v.
Kearney, 82 Miss. 688. Thus a testator may sign a will by his mark; Guthrie
v. Price, 23 Ark. 396; Bailey's Heirs v. Bailey's Executor, 35 Ala. 687, and
this is true even though the testator could write his name. Sheehan v. Kearney,
ante. But if the testator attempt to sign his name and only succeed in making a
scratch upon the paper, it is not a, sufficient signature since it was not the in-
tention of the testator that such mark should constitute his signature. Re
Plate's Estate, 148 Pa. St. 55. A will may be signed by initials; Pilcher v. Pilcher,
117 Va. 356, or by Christian name alone. Knox's Estate, 13I Pa. St. 220. Such
may also be signed by an abbreviation of the Christian name. Arendt v. Arendl,
8o Ark. 204; Barnes v. Home, 233 S. W. 859. Probably the case nearest to
the principal one is that of Wise v. Short, i8i N. C. 320, where the will was
signed "Brother Alex", and it was held that the signature was sufficient. In
the principal case, testamentary intent having been found, there could be no
doubt but that the testator intended the word "Father" to constitute his signa-
ture. Such informal signatures are common in those holographic wills which
are in the form of letters, although the practice should be discouraged as much
as possible, as such a signature usually leads to a contest of the will.

WILLS-WIDOW NOT AN HEIR OF HUSBAND.-The testator devised to his

wife the income of all his estate, both real and personal, to be used by her dur-
ing her natural life. At her death, (after certain minor bequests) the residue
was to be disposed of "according to the laws of inheritance of the state of
Maine". The wife died without issue after the will became operative. In an

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