
    Eliza M. Baker v. Jefferson D. Brown et al.
    Wills. Holograph. Caption.
    
    An holographic will, complete and perfect in itself, is not invalidated1 because the words “My will,” a mere caption, were written above it on the same sheet of paper by the hand! of another than the testator.
    Erom the chancery court of Wilkinson county.
    Hon. William P. S. VeNtress, Chancellor.
    Mrs. Baker, appellant, propounded the will in controversy, in the court below; Brown and others, appellees, contested. The issue devisavit vel non was submitted to a jury in the chancery court and a verdict was returned in favor of the contestants. The court below overruled the motion of the proponant for a new trial and rendered a decree adjudging the will void. Erom this decree the proponant, Mrs. Baker, appealed to the supreme court.
    The facts are fully stated in the opinion of the court.
    
      McWillie & Thompson, Bramlette & Tuclcer, and Thompson & Strieker•, for appellant.
    The writing propounded as the will of Mrs. Barkley had, by way of caption, the words “My Will,” and the contestants addressed a great part of their efforts to show that these two words were written with a different colored or somewhat paler ink than the rest of the instrument, by a different hand and at a different time.
    The chancellor instructed the jury, at the instance >of the contestants, that unless they believed from the evidence that “the paper” offered in evidence as the will of Mrs. Barkley was wholly written and signed by her they must find for the defendant, although 'they might believe that all of the will was written and signed by her except one word.
    
      Tbis instruction was erroneous and misleading, and the result of the trial shows that it was injurious. The evidence was overwhelming that the body of the instrument as well as the signature was in the handwriting of Mrs. Barldey, áhd it was for that reason that an effort was made to. throw suspicion on the caption. , The instruction made it. requisite that every word bn ■“•the- paper” should have been written by Mrs. Barkley, and Wá’s particularly aimed at the caption “My Will,” the authenticity of which could not affect the instrument, complete in itóelf, since it contained testamentary words and was dated and signed by Mrs. Barkley.
    .-The words “My Will,” which constituted the caption, of the writin'g, cannot properly be said to have constituted a part of the will... No/caption or indorsement, however worded, will make that a, will which is not one'without it, as for’lack of signature, date.or. testamentary words, etc., and the converse of the proposition is .-equally true, for a writing which is in substance a will is in nowise dependent for its effect upon such caption or-ihr dorsement. Boy v. Boy, 16 Gratt. (Va.), 418, 84 Am. .Dec., 696; Plumstead’s Appeal, 4 So. Pep. (Pa.), 545; Warwick v. Warwick, 86 Va., 596; Oonway’s Will, 124 N. Y., 455; Be Booth’s Will, 127 N. Y., 109.
    It has been held that an holographic-will in which'two words appeared which were not in the testator’s handwriting should be-sustained when the-presence or absence of the words did not affect the meaning of the instrument: McMicJiael v. Bankston, 24: Pa.. Ann,,¡451. ■ ’
    If'the writing-in question-had not contained words showing that it was to take effect at the death of the subscriber, a resort to the-words “My Will” might have been necessary to ascertain the' 'testamentary-purpose, but in' the body of the writing the subscriber-says1 she wants the proponent, Mrs. .'Baker, to have all that-she owned-“atmy (her)- death-,”, and-employs-other expressions; going, to; show-.the testamentary character -of the instrument. The will itself,-'-if wholly--written; and ’ subscribed- by Mrs. Barkley, satisfied the terms of our statute,; §' 448.8/Code 1892. It was complete without the caption,' and wholly: lacked that uncertainty of character which causes the small boy--to attach to 'his drawing the label, “This is a horse.” '.It could not be anything but her will in view of the terms’ it -employed* and the caption so designating it was. wholly superfluous.
    This being, the case, the jury were certainly misdirected by the instruction mentioned,' and the weight of the evidence being decidedly in favor, of the genuineness, of the instrument' they must have been misled by it. , , r ,
    
      J. E. Jones and A. 6. Shannon, for appellee.-'
    There is involved only a question of fact of' which the ‘jury were the sole judges. If there is evidence‘tending to show, that the will was not wholly written and signed 'by Mrs'. Barlüey, then the verdict cannot be disturbed, no matter how conflicting the evidence may be. We confidently refer to the evidence of Sidenspinner, Strieker, and Spéncer' and the- comparison of the alleged original will with writings' and signatures proted-and admitted to.be the writings and signatures of Mrs. Barkley as abundant evidence to justify the jury in considering the proposed will a forgery, or at least npt, whqlly written and signed by Mrs. Barkley. .... ;,1, '„
    We. would respectfully call the attention of the court, to the differ enees between the handwriting off the alleged will and''of some of the documents proved to be in Mrs. Barkley’s,, hánd-writing, or signed by her and-introduced, by both proponent and contestant. -'' ‘ ^ , .
    -The words “My Will” are clearly written, with different ink and at a different time from the body. of.the .paper, and in a different handwriting.. These words seena-tphayp-been- an,.afte,r-tfipught tomeetrthe case.of Young,v. 'WqYh^70 ,12.9^ ,
    Argued orally by
    
      T. A. McWillie, for appellant.
   Whíteteud, C. J.,

delivered tbe opinion of tbe court.

It may be accepted as true from tbe finding of tbe jury that tbe caption of tbe will consisting of tbe two words, “My Will,” were not written by tbé testatrix. Tbe instrument probated as tbe will is in tbe following words:

"MY WILLr

“Stamps LANDING-, July 26th, 1903.

“1 Want Eliza Baber to have all I own at my death and carry out my wishes tbe best she can. Let everything stand as I leave it. Give each heir $5.00 for me. E. H. Babkxey.”

All of this instrument, except these two words, “My Will,” were written by tbe testatrix, according to tbe overwhelming weight of tbe evidence. In other words, tbe whole paper, except tbe two words specified, was wholly written, dated, and signed by tbe testatrix. On this state of tbe testimony tbe court gave the following instruction for tbe defendants:

“Tbe court instructs tbe jury for tbe defendants, that unless tbe jury believes from tbe evidence that tbe paper offered here, in evidence, as tbe will of Mrs. E. H. Barkley, was wholly written and signed by her they must find for tbe defendants, although tbe jury may believe from the evidence that all of tbe will was written and signed by her except one word, and in establishing said will tbe burden of proof is on tbe plaintiff; consequently if they believe that tbe evidence is evenly balanced they must find for tbe defendants.” Was this instruction erroneous? Or to put it in clearer light, perhaps, were the two words, “My Will,” constituting tbe caption, pure surplusage? What remained contained tbe dispositive part of tbe will, and was in itself an entire, complete, and perfect holographic will. It is doubtless true that tbe utmost strictness prevails in requiring holographic wills to be Wholly written by tbe testator. Perhaps that view has nowhere heén better expressed than by Judge Eenner in Succession of Armant, 43 La. Ann., 314, where tbe court says:

“We were at first much impressed with tbe clear proof made, that tbe deceased intended tbis paper to be ber testament. Bnt there is no more doubt that sbe intended tbe invalid nuncupa-tive codicil- to be ber testament. Tet as tbe latter was attested by women wbo are incompetent testamentary witnesses, no one claims its validity. 'And so if tbe holographic will is not signed as required by law, ber intentions cannot save it. Tbe question is not whether sbe intended tbis paper to be ber will, but whether it is a will clothed with tbe form of law. An'holographic, like every other testament, is a solemn act. It matters not bow clearly it conveys tbe last wishes of tbe decedent, if it is not clothed with tbe forms prescribed it is null.” We cite also as illustrative of tbis strictness Estate of A. C. Rand, 63 Cab, 468; Warwick v. Warwick, 86 Va., 602.

This last case, however, aids tbe view we take in tbis case, since it held that tbe words “My Will, Abram Warwick, Jr.,” endorsed on tbe envelope containing tbe will within, did not constitute a signing of tbe will so enclosed. In other words, tbe court held that tbe inscription on tbe outside of tbe envelope was no part of tbe will within tbe envelope. It has been held on the other band, that a holographic will is none tbe less a holographic will because it may be attested by witnesses. Speaking to tbe point tbe court says in Re. Soher, 78 Cal., 479: “Tbe witness clause is not, under tbe circumstances, to be considered as a portion of the will which is no more affected by it than any other document which does not require attestation, such as a deed or contract would be. And it seems to us that courts should presume that tbe intention of tbe testator was that of a reasonable and prudent man under tbe circumstances, and should not adopt a somewhat strained construction to defeat what, there is every reason to believe, was tbe desire of tbe testator.” And to tbe same effect tbe supreme court of North Carolina says in Harrison v. Burgess, Hawks Law and Equity, vol. 1, page 393: “As to tbe third objection that it is not a will under tbe act'of April, 1784, there can be no weight in it. Tbe signature, of subscribing witnesses is no part of the will. The witnesses, put their names there to be enabled to identify the paper,, and where the law requires subscribing witnesses it is for the same purpose. Originally the witnesses did not put their names to the paper, but Mis testibus was added by the parties concerned, that they might know on whom to call in case of a dispute. The will is not certainly worse by having one subscribing witness, it will certainly answer the purpose of more certainly showing that this is the paper which she saw deposited in the bureau; going beyond the requisitions of the act, in respect of proofs, certainly cannot annul that which comes up to them.” See also generally the 29th volume Am. & Eng. Ene. Law (1st ed.), page. 127 through page 130, text and notes.

We might rest'our decision on the .'single proposition supported by these authorities, that the words, “My Will,” are a mere caption, and constitute no part of the dispositive portion of the will, but we have a much stronger and more direct authority still sustaining our view. The supreme court of Louisiana,, in the case of McMichael v. Bankston, 24 La. Ann., 451, speaking to this point, says as follows:

“The four .plaintiffs as- witnesses state that the will was entirely written, dated, and signed by the hand of the testator except the word To’ in the sixth line from the top, and .the word 'acres’ in the eighth line, which was in a different hand. Another witness and two experts express the same opinion. The original will is before us, and it is evident that there is some difference in the appearance of those two words from the balance of the writing. But it is very manifest that the presence, or absence of the two words can have no material, effect upon the' meaning or contents of the will. Without them, the sense is the same as with them, the- whole will showing that the testator bequeathed 'to’ his wife a certain.number of facres’ of lapd. In another place there is a connected and rational repetition of this bequest in which the game two words are written by the testator. Admitting,- therefore, that the two words in question were added by the band of another, we may safely, under the first clause of Article 1589, B. C. 0., consider them as not written, and not impair the validity or effect of the will.’ We cannot say that the law requires a will to be annulled for so unimportant and trivial a cause.”

Here, manifestly, the words “to” and “acres” were words in the dispositive part of the will, and they were not written by the testator, but it is just as manifest that they were so. clearly sur-plusage as to leave the will’s meaning without them precisely what it meant with them, and so the court held that, although in the dispositive part of the will, the fact that they were not written by the testator could not defeat the will, unless without them the meaning and purpose were in some manner materially affected.

We think this is a perfectly sound viéw of this matter, and it follows that the giving of the instruction was fatal error.

Reversed and remanded.  