(- Utah, -, 180 Pac. 169.)

(- Utah, -, 180 Pac. 169.) Will — holographic will — blank form — probate only of writing.

1. The statutory requirement that a holographic will must be wholly in the handwriting of testator cannot be avoided so as to validate a will written by testator on a stationer's blank form, a part of which is printed, by offering to probate merely the portion written by testator.

[See note on this question beginning on page 731.] statutory requirements.

opinion of court - action of legis. 2. The right to dispose of property lature. by will is governed entirely by stat- 3. The court has no power to subute, and unless the provisions of the stitute its judgment for that of the statute are strictly complied with, the legislature as to essentials of a holoinstrument purporting to be a will is graphic will. void.

[See 6 R. C. L. 107.]

APPEAL by petitioner Brodbeck from an order of the District Court for Salt Lake County (Porter, J.) appointing petitioner Mahnkin administrator of the estate of Mary J. Wolcott, deceased. Affirmed.

The facts are stated in the opinion of the court. Messrs. Ray Van Cott and J. W. Mc- (N.S.) 842, 72 S. E. 1072; Martin's Kinney, for appellant:

Estate, 58 Cal. 530; Re Price, 14 Cal. The document proposed as the last App. 462, 112 Pac. 482; Re Carpenter, will and testament of decedent meets 172 Cal. 268, L.R.A.1916E, 498, 156 the requirements of the state statute. Pac. 464; Armant's Succession, 43 La.

Morrison v. Bartlett, 148 Ky. 833, 41 Ann. 314, 26 Am. St. Rep. 183, 9 So. L.R.A. (N.S.) 39, 147 S. W. 761; 1 50; Williams v. Hardy, 15 La. Ann. Jarman, Wills 26; Re Rand, 61 Cal. 286; Robertson's Succession, 49 La. 468, 44 Am. Rep. 555; Re Soher, 78 Cal. Ann. 868, 62 Am. St. Rep. 672, 21 So. 477, 21 Pac. 9; Baker V. Brown, 83 586; Re Plumel, 151 Cal. 77, 121 Am. Miss. 793, 36 So. 539, 1 Ann. Cas. 371; St. Rep. 100, 90 Pac. 192; Re Noyes, McMichael v. Bankston, 24 La. Ann. 40 Mont. 190, 26 L.R.A. (N.S.) 1145, 451; Robertson's Succession, 49 La. 105 Pac. 1017, 20 Ann. Cas. 366; 30 Ann. 868, 62 Am. St. Rep. 672, 21 So. Am. & Eng. Enc. Law, 2d ed. 552; Rem586; State v. Emsweller, 78 W. Va. sen, Preparation & Contest of Wills, 214, 88 S. E. 787; Pena v. New Or- p. 19; Schouler, Wills, § 255; Underleans, 13 La. Ann. 86, 71 Am. Dec. 506, hill, Wills, p. 15; Re Rand, 61 Cal. 468, 14 Enc. Ev. 435, 436; Armstrong v. 44 Am. Rep. 555; Re Billings, 64 Cal. Walton, 105 Miss. 337, 46 L.R.A.(N.S.) 427, 1 Pac. 701. 552, 62 So. 173, Ann. Cas. 1916E, 137;

Thurman, J., delivered the opinRe Chevallier, 159 Cal. 161, 113 Pac. 130; Re Lakemyer, 135 Cal. 28, 87 Am.

ion of the court: St. Rep. 96, 66 Pac. 961.

This is a controversy concerning Messrs. T. Ellis Browne and C. W. the legal effect of a document purMorse, for respondent:

porting to be the last will and testaThe document purporting to be the ment of Mary J. Wolcott, deceased. last will of Mary J. Wolcott does not The controversy arises between meet the requirements of § 2736, Com

Martin Mahnkin, petitioner for letpiled Laws of Utah 1907, so as to be entitled to probate as a holographic ters of administration, alleging that will.

the deceased died intestate, and Mrs. Re Jenkins, 157 N. C. 429, 37 L.R.A. Hazel Brodbeck, petitioner for let

ters testamentary, alleging that de- As soon as possible I want all stocks ceased left a will. The document is and vacant property disposed of and not witnessed, but was offered for after all debts be paid whatever is probate as a holographic will. The left be given to the Teachers' Hospitrial court found the issues in favor tal Fund of Salt Lake City, Utah. of Mahnkin, and entered an order Fourthly. I want my horses sadappointing him administrator of the dle, bridle, buggy, harness, etc., to estate. Mrs. Brodbeck appeals. be given to John Treutlen together

The validity of the document as a with the sum of $100.00. holographic will, under Comp. Laws After all debts are paid any Utah 1917, § 6316, is the sole ques- money remaining is to be equally tion presented for determination. divided between

Ella Murphy The instrument was written upon a

Smith and Hazel Brodbeck. My
stationer's will form, part of which mother's watch is to be given to her
was printed and part left blank. The niece Kittie Welts of Auburn, New
blank spaces were filled by deceased York.
in her own handwriting. The words I hereby appoint Martin Mahnkin
and figures of the entire instrument administrator without bonds.
are as follows:

Fifthly. I wish the sum of $250
Will.

paid to Mrs. Isabelle D [blot) enny
In the name of God, amen, I, of Beaver, Utah, also $250 to Mrs.
Mary J. Wolcott, of the city of Salt Mary Mc [blot] Lane of Salt Lake
Lake, county of Salt Lake, state of and the sum of $100 to Mrs. Harry
Utah, of the age of forty-seven Campbell of Salt Lake City.
years, and being of sound and dis-

Sixthly. posing mind and memory, and not

Lastly. I hereby nominate and acting under duress, menace, fraud, the executors of this, my last will

appoint or undue influence of any person whatever, do make, publish, and de

and testament, and hereby revoke clare this my last will and testa- all former wills by me made. ment, in manner following, that is

In witness whereof, I have here

unto set my hand and seal this Fifth First. That the house and lot to day of Oct., in the year of our Lord gether with all furniture at 957 E.

one thousand nine hundred and 17. 6th S. St. together with the silver

Mary J. Wolcott. [L. S.] ware be the property of Mrs. Hazel

The foregoing instrument, conBrod.

sisting of two pages, besides this, Secondly, beck during her life

was at the date hereof, by the said time and after her death be sold Mary J. Wolcott signed and sealed and the proceeds be placed to the

and published as, and declared to benefit of the Teachers' Benefit As- be, his last will and testament, in sociation of Salt City.

presence of us, who at his request, Thirdly. That the house and lot and in his presence, and in the at 1210 9th East be transferred to

presence of each other, have subMrs. Watson Bracken of Ophir,

scribed our

as witnesses Utah.

thereto. That the house and lot at 624 4th

Mary J. Wolcott,
Ave. be transferred to Mrs. Ella Residing at Salt Lake City, Utah.
Murphy Smith during her lifetime
and after her death be sold and that

Residing at
the proceeds be placed to the credit The italicized words and figures
of the Salt Lake Teachers' Hospital represent the printed portion; the
Fund.

remainder was written entirely by That my father's violin be sent to deceased. The statute above referred Fred Weale of Elmira, N. Y. That to is as follows: "An olographic my mink furs be given to Mrs. Flora will is one that is entirely written, Goodsell of Salt Lake City, Utah. dated, and signed by the hand of the

to say:

names

(- Utah, -, 180 Pac. 169.) testator himself. It is subject to no tion. Neither does it appear that other form, and may be made in or any such offer was ever made beout of this state, and need not be fore in a case of this kind. Counsel witnessed. Such wills may be has referred us to no authority. If proved in the same manner as other there are authorities sustaining the private writings."

right of a party to offer for probate There is no doubt that the de- as a will such portions of a docuceased intended the document to be ment as he may desire for the purher will, but the right to dispose of pose of making a case, while ex

property by will is cluding other portions which would Will-statatory governed and conrequirements.

defeat his purpose, such authorities trolled entirely by are not well considered, and we statute. Such statutes are manda- would hesitate

would hesitate to follow them. tory, and, unless strictly complied If the matter excluded from the ofwith, the instrument, as a will, is fer was totally disconnected therevoid. This will appear from many from, was not germane, or was enof the authorities hereinafter cited. tirely irrelevant to the purpose and

Appellant, in offering the docu- object of the instrument, a differment for probate, offered only the ent question would be presented. words and figures written by the Such matter might be treated as deceased. Her counsel expressly surplusage and disregarded. “Surexcluded the printed matter from plusage" is defined by a distinhis offer and by this means sought guished author: "Matter in any into bring the document within the strument, foreign to the purpose; terms of the statute. The offer was whatever is extraneous, impertiunique and the proceedings some- nent, superfluous or unnecessary.” what anomalous. If the deceased Anderson's Dictionary of Law, 997; had written across the printed Adams v. Capital State Bank, 74 words and figures, or through them, Miss. 307, 20 So. 881. or over them, or entirely regardless Instances of such matter occur in of them or their meaning and effect, many of the cases cited. The fact her writing alone would have been that the matter written by deceased admissible in evidence to the same in her own hand, standing alone, effect as if written on blank paper. might constitute a complete testa

. But such was not the case. The mentary disposition of her propprinted matter in the instrumenterty, does not alter the case. The offered was just as much a part of document offered by appellant is its contents as the script written not the document prepared by deby her own hand. She adopted the

ceased as her will. The document printed matter in order to fully ex- actually prepared press her intention. She no doubt by her does not court-action of

-opinion of procured the blank form for the

meet the statutory

legislature. purpose of aiding her to express her requirements. In either case the intention in a formal manner. No instrument cannot be sustained as a other conclusion can properly be will without arbitrarily setting the drawn if we view the instrument statute aside and substituting our from the standpoint of reason un- will for that of the legislature. hampered by desire. No criticism This we have no right or power to of appellant's counsel can be justly do, however much we may appreciindulged in for making the offer in ate the hardship incident to a strict the way he did. While from every construction in the present case. Un

point of view such flinching loyalty to the law, both in -holographie will-blank form an offer was unten- letter and in spirit, is the only sure -probate only of able, nevertheless, ground upon which to stand. Even

, writing.

as stated by him, if we had the right to express our there do not appear to be any ad- views in the present case as to judicated cases against his conten- what the statute ought to be, we are

not prepared to say what changes Succession, 49 La. Ann. 868, 62 Am. should be made. The law in ques- St. Rep. 672, 21 So. 586; Re Plumel, tion is founded upon wise and pru- 151 Cal. 77, 121 Am. St. Rep. 100, dential considerations. It is based 90 Pac. 192; Re Noyes, 40 Mont. upon the experience of enlightened 190, 26 L.R.A.(N.S.) 1145, 105 Pac. governments whose growth and de- 1017, 20 Ann. Cas. 366; Re Rand, 61 velopment have been upward and Cal. 468, 44 Am. Rep. 555; 3 Alexonward in the attainment of a high ander, Wills, § 312; Re Billings, 64 er civilization.

Cal. 427, 1 Pac. 701, in which the It is not our purpose to comment court said: “Section 1277, Civil upon the authorities cited by the Code, requires that a paper, to conparties litigant. The briefs on both stitute an olographic will, must be sides have been well prepared and entirely written, dated, and signed the leading authorities carefully by the hand of the testator. It must collated, thereby rendering the be entirely written, it must be encourt a service the importance of tirely dated, and it must be entirely which is duly acknowledged.

signed by him. If it be partly writAppellant's counsel relies on the ten by him and partly written by following authorities: Morrison v. another, or printed,—if it be partly Bartlett, 148 Ky. 833 41 L.R.A. dated or signed by him and partly (N.S.) 39, 147 S. W.761; 1 Jarman, by another,—it is not a compliance Wills, 26; Re Rand, 61 Čal. 468, 44 with the statute." Am. Rep. 555; Re Soher, 78 Cal. The following excerpts from 477, 21 Pac. 9; Baker v. Brown, 83 standard authors on wills, quoted Miss. 793, 36 So. 539, 1 Ann. Cas. by respondent, are pertinent: 371; Robertson's Succession, 49 La. “It is absolutely essential that Ann. 868, 62 Am. St. Rep. 672, 21 an olographic will be wholly in the So. 586; State v. Emsweller, 78 W. handwriting of the testator. ThereVa. 214, 88 S. E. 787; Pena v. New fore an instrument partly written Orleans, 13 La. Ann. 86, 71 Am. and partly printed will be refused Dec. 506; 14 Enc. Ev. 435, 436; Re probate.” 30 Am. & Eng. Enc. Skerrett, 67 Cal. 585, 8 Pac. 181; Law, 2d ed. p. 552. Alexander, Wills, $ 1314; also "A holographic will is one wholly 1312; Armstrong V. Walton, 105 written, dated, and signed in the Miss. 337, 46 L.R.A.(N.S.) 552, 62 proper handwriting of the testaSo. 173, Ann. Cas. 1916E, 137; Re tor.'

tor.” Remsen, Preparation & ConChevallier, 159 Cal. 161, 113 Pac.

tests of Wills, p. 19. 130; Re Lakemeyer, 135 Cal. 28, 87

See also Schouler, Wills, $ 255,

and 1 Underhill, Wills, 15. Am. St. Rep. 96, 66 Pac. 961; Caine v. Hagenbarth, 37 Utah, 69, 106

“The holographic will must be

entirely in the handwriting of the Pac. 945.

testator, at least as to every part Respondent's counsel cites the fol

necessary to its validity. A will lowing authorities to the effect that

written on the printed form by fillthe instrument is not a valid will: ing in blanks is not a good holoRe Jenkins, 157 N. C. 429, 37 L.R.A. graphic will.” Page, Wills, $ 230. (N.S.) 842, 72 S. E. 1072; Re Mar- “The writing must all be made by tin's Estate, 58 Cal. 530; Re Car- the testator. A will on a printed penter, 172 Cal. 268, L.R.A.1916E, form with the blanks filled in the 498, 156 Pac. 464; Armant’s Suc- handwriting of the deceased is not cession, 43 La. Ann. 314, 26 Am. holographic.” Rood, Wills, $ 270. St. Rep. 183, 9 So. 50; Williams v. The decided weight of authority Hardy, 15 La. Ann. 286, in which it seems to be against the contention is said: "Where a testament, pur

of appellant. The judgment is afporting to be of the olographic firmed at appellant's costs. kind is not entirely written by the Corfman, Ch. J., and Frick, Weber, testator, it is null;" Robertson's and Gideon, JJ., concur.

It is a general requirement govern- printed. The legislature has seen fit ing holographic wills-in states where to prescribe forms requisite to an holothe requirements as to execution are graphic will, and these forms are made relaxed in case of such wills—that the

necessary to be observed.

It was will be wholly in the handwriting of strenuously urged before us that the the decedent. The only cases that portions of the paper which were writhave passed upon the validity of such ten by the deceased should be admita will written on a form in which the ted to probate, omitting the printed printed words in the form are part of portions. We are not at liberty to so the will as completed agree with the hold. We should thereby, in effect, decision in the reported case (RE change the statute, and make it read WOLCOTT, ante, 727), that there is in that such portions of an instrument as such a case no valid holographic will. are in the handwriting of the deceased Re Rand (1822) 61 Cal. 468, 44 Am. constitute an holographic will. The Rep. 555. See Maris v. Adams (Tex.) instrument in its entirety is before us. infra.

It is was not entirely written by the The court in Re Rand (Cal.) supra, hand of the deceased." refers to the statutory provision that A promissory note written on a holographic will is one that is en- printed form cannot be probated as a tirely written, dated, and signed by holographic will under a statute rethe hand of the testator himself, and quiring such a will to be "wholy writcontinues: “The paper before us was ten by the testator.” Maris v. Adams not entirely written by the hand of (1914) Tex. Civ. App. —, 166 S. W. the deceased. Portions of it were 475.

W. A. E.

a

DAVID LARSON, by Guardian ad Litem, Respt.,

Proximate cause letting dilapidated building landlord's liability.

1. Letting a building for a shooting gallery, with walls so dilapidated that bullets glancing from the targets are likely to pass through and injure persons in the vicinity, is the proximate cause of injury to a bystander by a bullet taking such course.

[See note on this question beginning on page 740.] Landlord and tenant - letting shoot- . - letting nuisance liability.

ing gallery — liability for injury to 3. If an owner creates a dangerous passer-by.

nuisance on his land, he cannot avoid 2. One letting for a shooting gal

liability if a person is injured thereon lery a building so dilapidated that bul

by letting to another the land with the lets glancing from the targets are liable to pass through the walls of the

nuisance thereon, at least if it can be building to the injury of passers-by is

reasonably expected that the lessee liable for injury so caused.

will continue the nuisance. [See 16 R. C. L. 1082.]

[See 16 R. C. L. 1076.]