Sullivan v. Jones 130 Miss. 101, 93 So. 353

Sullivan v. Jones.

[93 South. 353,

No. 22691.]

1. Wills. Letter constituting valid holographic will must be of testamentary character, wholly written, dated, .and signed by testator.

For a letter to constitute a valid holographic will, it must be testamentary in its character, wholly written, dated, and signed by the testator.

2. Wills. Letter not containing dispositive word, not will, in absence of evidence that it zvas intended to be testamentary.

A letter, though 'wholly written and signed by one, which does not purport on its face to be a will, and does not contain a dis-positive word, in the absence of evidence that it was intended to be testamentary in character, is not a will. '

3. Wills. Letter held not will.

Where a soldier has taken out a government life insurance policy, payable to himself, and has' instructed that it be mailed to his aunt for safe-keeping, who writes the aunt to know if she has received the policy, and in the letter states that “it means five thousand dollars to you or me,” is not dispositive in form or substance, and is not the last will and testament of the writer.

Appeal from chancery court of Simpson county.

Hon. D. M. Russell, Chancellor.

Proceedings in chancery by Mrs. Anna Lou Jones against L. J. Sullivan to probate the last will and testament of Jesse I). Sullivan, deceased. From decree admitting the will to probate, defendant appeals.

Reversed, and petition dismissed.

W. M. Lofton, for appellant.

There is nothing about either of the letters to show that the writer intended them as a will, and a paper which on its face does not purport to be a will and which does not contain a word of a dispositive character is not a will. Young et al. v. Wark, 76 Miss. 829, 25 So. 660.

*102In the case just cited, the court was construing a paper, alleged to be the last will and testament of one S. A. M. Saddler. At the time of his death, he was occupying a room at the house of a tenant named Mr. Blake, and died on the last Saturday night in January, 1897, about 12 o’clock, P. M. He was buried on the following Monday, and after his burial, there was found in his room upon the mantelpiece, behind a vase, a piece of paper, which was folded, and being unfolded, there was found written the following words: “Want Sarah relatives have all property. S. A. M. Saddler.” In this case, it is shown thát Sadler inherited the property in controversy from his wife, Sarah, and that during her lifetime, she was desirous of making a will and devising the property to her own blood kin, in exclusion of the relatives of her husband, but that she had been dissuaded from doing so by her husband by the promise from him at his death, the property should go as she wished. It was also shown after the death of his said wife, Sarah, that Saddler had on a number of occasions expressed an intention of giving this property to the wife’s relatives. I omitted to state that the chancery clerk had admitted this paper to probate as a will. However, when the case was heard before the chancery court, the court cancelled the document as a will and annulled the probate thereof. On appeal to this court, the case was affirmed.

In speaking of the proposed Saddler will, the court said: “It does not purport on its face to be a declaration of what he intends shall be the disposition of his property after his death. There is not a word in the instrument of a dispositive character, nor was any collateral evidence given of the intention of the writer in respect to the instrument.” Now, if this can be said of the proposed Saddler will, then what could be said of these letters, which the complainant in the court below offered as a will? These letters merely state that the writer had made a policy of five thousand dollars insurance payable to the said Mrs. Anna L. Jones. Also I would call the attention of this *103court to the fact that the letters do not say what company issued the five thousand dollar policy of insurance, and so there is no policy identified by these letters. And courts cannot supply defects in a will but can only construe what is written therein. Johnson v. DeLome Co., 77 Miss., 15, 26 So. 360. Along the same line, I might add that the statute of wills only provide for the devolution of property by wills actually made, and not by what those parties intend, however definitely, to make, but do not make. Schlottman v. Hoffman, 73 Miss. 188, 19 So. 893.

The case before this court is unlike the case of Buffington v. Thomas, 84 Miss. 157, 36 So. 1039. In the Buffington case, Mamie Buffington, the wife of appellant, M. C. Buffington, was sick with consumption and went to San Antonio, Texas, for her health. While there she wrote a letter to Mr. E. Drenning of Yazoo City, Mississippi, in which she said among other things, that: “In case I die see that old Buffington has nothing of mine, not even a lock of my hair. Eliza has did what she could for me and I want her to have our home in Yazoo City.” Of course, the court would construe this letter as a will, as it certainly expresses the intention of the writer. The letter states that the writer does not want old Buffington to have any of her property, and then says that she wants Eliza to have her home in Yazoo City, giving expression to her intentions. But there is no such intentions expressed in the letters offered as a will in the case at bar.

I am not unmindful of the fact that wills written in extremis should be liberally construed, but no such a state of affairs existed at the time these letters were written by the said Jesse D. Sullivan. There he was a soldier in the United States Army, buoyant with hope, with perfect health, hé wrote in a transport of happiness, telling his kin of his "thoughtful remembrance of them during the Christmas holidays and expressing the hope that he might be able to get a furlough and visit them. But suppose the court should indulge in a liberal construction of all wills made by soldiers, whether made in extremis or otherwise, *104then I insist that in the case before the court there is nothing to construe. The letters are not in form or substance a will, and there is nothing of a testamentary nature or character about them. As to the third cause of demurrer., I will state that the argument made herein in support pf the first cause is equally applicable to the third, and so I will not repeat here what I have just stated, and so I submit this argument not only in support of the* first cause of the demurrer, but also in support of the third cause.

Hilton <& Hilton, for appellees.

Testimony was offered by complainant and on the facts in the case the lower court held that the letters should be construed as a will, using this significant language in his decree: “The court further finds as a fact that the two letters herein decreed to be the last will and testament of Jesse D. Sullivan when construed together, in the light of the environment and condition of the said Jesse Daniel Sullivan, deceased, at the time he wrote said letters, as shown by the facts in this case, should be and is considered as an expression from said Jesse Daniel Sullivan, deceased, as being his last will and testament and his desire as to what disposition should be made of his property at his death.”

Now the general rule is that in the construction of wills, the object is not to declare them invalid but to sustain them if legally possible. See section 167 of Wills, 28 R. C. L., page 206. Also in the construction of wills that each will must be largely construed upon its own verbiage and under the circumstances surrounding each particular case. Sections 165 & 166 of 28 R. C. L., pages 204 & 205.

We cite the court the following authorities to show that the lower court was correct in construing these letters .as the will of deceased. However, the facts are not exactly the same but they will indicate that other expres*105sions, used by other testators, not as strong as the expressions here, were accepted and probated as a will. We shall not prolong this brief by copying herein excerpts from said authorities but will ask the court to kindly read them and we think a reading of them will convince this court that the lower court did not err in overruling the demurrer on entering the final decree that he did enter. Eaton v. Brown, 48 Law Ed. U. S. E.; Tarter v. Tarter et al., 9th Law Ed. TJ. S. E.; Myl-am et al. v. Stanley et al., 17 L. E. A. (N. S.) 1126; Anderson v. Pryor, 10 Smedes & Marshall, 620, Sartor et al. v. Sartor, 39 Miss. 760; Redhead, 83 Miss. 141; Buffington v. Thomas, 84 Miss. 157; Prather v. Prather et al., 97 Miss. 311.

In connection with the above authorities we call the court’s attention to the fact that these letters were construed by the lower court as a will. And therefore if the expressions used in them are subject to be construed as a will or otherwise, then under the rules of this court', the decree of the lower court will not be disturbed. Of course, however, if taken all together the letters cannot be construed as a will, giving to them every favorable construction in that respect, then of course we recognize the rule that this court would reverse the .case.

Therefore we most respectfully submit that this case should be affirmed.