
    In re STOVER’S WILL. McKINNEY, Ex’r., v. SMITH.
    No. 14803
    Opinion Filed Oct. 14, 1924.
    Rehearing Denied Dec. 2, 1924.
    1. Wills — Validity—Burden of Proof.
    The burden of proof rests upon the proponent of a will to establish by a preponderance of the evidence that the will was executed and published according to the provisions of the statutes.
    2, Same — Execution of Will — Requisites. The declaration of the testatrix to the attesting witnesses that the instrument is "her will and the signing thereof in the presence of the attesting witnesses or an acknowledgment by her to the ■ subscribing witnesses that the will had been signed by her or by her authority are essential parts of the execution of a nonholographic will.
    
      S. Same — Failure of Proof.
    Where an nonholographic will is offered for probate and the evidence fails to show that the testatrix declared or published the instrument as her will in the presence of the subscribing witnesses and which fails to show that the will was signed or acknowledged by the testatrix to have been signed by her or by her authority in the presence of the subscribing witnesses, the proponents have not established that the will was executed according to law, and the probate thereof should be denied.
    4. Same.
    Record in the instant case examined, and held, that the proponent of the will has failed to establish by a preponderance of the evidence that the same was executed, published and attested as required by the laws of the state of Oklaihoma.
    (Syllabus by Foster, C.)
    Commissioners’ Opinion, Division No. 5.
    Error from District Court, Grady County; Will Linn, Judge.
    Petition of O. R. McKinney, executor, for admission to probate of the alleged last will and testament of Annie Stover, deceased, Maggie Smith as contestant appeared and contested the probate of the instrument propounded. The will was admitted to probate by the county, court and contestant appealed to the district court of Grady county. On trial de novo, the district court refused to admit the will to probate. Proponent appealed.
    Affirmed.
    Bond. Melton & Melton, for plaintiff in error.
    Bailey & Hammerly, for defendant in error.
   Opinion by

FOSTER, C.

This appeal is prosecuted to reverse a judgment of the district court of Grady county, refusing to admit an instrument purporting to be the last will and testament of Annie Stover, deceased, to probate.

O. R. McKinney petitioned the county court of Grady county to have an instrument bearing date of March 13, 1920, admitted to probate as the last will and testament of Annie Stover, deceased. By the terms of this instrument all of the property of the said Annie Stover was devised and bequeathed, share and share alike, to six of the eight children of the deceased, it being recited that two of tlie children had already received their full share of the estate.

The said O. R. McKinney was nominated as executor of said will.

Upon hearing in the county court of Grady county, judgment was entered admitting the will to probate. An appeal was perfected to the district court of Grady county where, after hearing the trial de novo', upon transcript of evidence and proceedings had in the county court, judgment was rendered refusing to admit the instrument to probate, to reverse which, O. R. McKinney has instituted proceedings of error in this court.

Maggie Smith, a daughter of the deceased, appeared in the county court and in the district court of Grady county and contest-ted the probate of the instrument propounded as the last will and testament of Annie Stover, deceased, upon the ground .that the same had not been executed, published, and attested as required by the laws of the state of Oklahoma.

The only proposition relied upon and discussed in the brief of the plaintiff in error is that the trial court erred in failing to find that the will had been executed in substantial compliance with the laws of this state.

The evidence in the record discloses that the will in question was prepared by E. L. Kirtley, in his office in the town of Marlow, that one of the subscribing witnesses to the will, J. Ad Wylie, shared the office with the draftsman- of the will, Mr. Kirtley, and kept a desk there, Wylie’s desk being stationed some 12 feet from Kirtley’s desk. That on the occasion of the execution of the will in controversy, Mr. Wylie came into the office and found the testatrix and Mr. Kirtley together, near Mr. Kirtley’s desk, that after engaging the testatrix in conversation for a moment he retired to the rear of the office, which is some 25 feet from Kirtley’s desk, and there engaged the other subscribing witness, W. W. House, in conversation, Mr. House being already in the office. That, thereupon, the testatrix and Mr. Kirtley engaged in conversation, the nature of which neither Mr. Wylie nor Mr. House heard, or remembered, that soon afterwards Mr. Kirt-ley walked to where Wylie and House were in conversation, in the rear of the office, and requested both of them to sign as witnesses to the signature of the testatrix which had already been placed upon an instrument of writing, prepared by Kirtley at the request of the testatrix, that this request was made in the presence and hearing of the testatrix, and that both Wylie and House thereupon affixed .their signatures to the instrument as witnesses.

Neither Wylie nor House would state whether or not the instrument Was read over to the -testatrix or read by tier in their presence, nor did the testatrix declare or acknowledge the instrument to be her will, at the time they affixed their names thereto, as witnesses, that neither of the subscribing witnesses saw the testatrix affix her signature to the instrument, nor did she acknowledge to them that the signature appearing on the instrument was her signature.

The great weight of the evidence is to the effect that neither of the subscribing witnesses knew that the instrument they were signing was a will, and that the will was not signed or acknowledged in the presence of the subscribing witnesses, nor any declaration made by the testatrix to the attesting witnesses that the instrument was her will at the time it was signed by her. Section 11231, Comp. Stat. 1921, provides:

“Formal 'Requisites: Every will, other than a nuncupative will, must be in writing-l- and every will, other than a holographic will and a nuncupative will, must be' executed and attested as follows:
“First: It must be subscribed at the end thereof by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto.
“Second: The subscription must be made in the presence of the attesting witnesses or be acknowledged by the testator to them, to have been made by him or by his authority.
“Third: The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will, and,
“Fourth: There must be two attesting witnesses each of whom must sign his name as a witness at the end of the will at the testator’s request and in his presence.”

The testimony in the case at bar establishes to our satisfaction a failure to substantially comply with the requirements of subdivisions two and three of the statute quoted.

Something more is required in establishing the execution of a will than is required to prove the execution of some other instrument of less formality than a will. We do not mean to be understood as holding that there must be a literal compliance with the statute as to the execution and publication of a will before the will shall be admitted to probate. We. think it may be said to be fairly established by the authorities that proof of due execution, publication, and attestation may be implied from the conduct ■of the testatrix, and that an express declaration by the testator to the subscribing witnesses that the instrument 'is his will is not necessary.

In the instant case, if there had been any testimony that the subscribing witnesses had heard the will read over to the testatrix and had seen the testatrix thereupon sign her name to the will, although the testatrix may not have spoken or expressly declared the instrument to be her will, there might have existed suth proof of compliance with the statute as would entitle the will to probate. But in this case it has not been shown that the subscribing witnesses say the testatrix sign the will or heard her declare either by action, conduct, or words that the instrument was her will.

We would not be disposed to quibble about the method of publication adopted by the testatrix if the evidence tended to show the adoption of any method of publication whatever. however informal it might have been.

In this state, our court, in the case of McCarty et al. v. Weatherly et al., 85 Okla. 124, 204 Pac. 632, has laid down the rule as follows, in the sixth paragraph of the syllabus:

“Where a nonholographic will is offered for probate and the evidence fails to show that the testatrix declared or published the instrument as her will in the presence of the subscribing witnesses, the proponents have not established that the will was executed according to law, and the probate thereof should be denied.”

In the fifth paragraph of the syllabus in the same ease it is said:

“The declaration of the testatrix to the attesting witnesses that the instrument is her will is an essential part of the execution of a nonholographic will.”

The reason for the rule is, we think, correctly stated in 28 Ruling Case Law, page 108, paragraph 60, in the following language:

“The formalities to be observed in the execution ofwills are simple and calculated to prevent frauds and uncertainty in the testamentary dispositions of property, and where a Legislature has seen fit to impose certain requirements looking to the execution of a will, compliance with such requirements is necessary, to the validity of any instrument offered as a .testament. No essential formality may be dispensed with and a failure to comply with formalities prescribed for the prevention of fraud is not excused by showing that in the participar case under consideration there was no fraud. The power of transmitting property by will is a power to be exercised solely under the statute law, and only by compliance with the requirements of the statute may an heir be deprived of his inneritanc-e. It is the inteauuu vi the Legislature which controls, not that ot l he testator, and a will which in its execution does not conform to the provisions of the statute will be denied probate, notwithstanding the intention of the testator. It is immaterial that the requirements of the law in their application in particular cases may defeat the actual intention of a person as to the disposition ot ms property."

And again, in the case of Hill v. Davis, 64 Okla. 256, 167 Pac. 468, our court said:

“The right to dispose of property by wilt is a creature of the statute. The Legislature has the power, in granting the right, to determine and prescribe the form and manner in which it shall be exercised. In requiring that the testator shall declare to two attesting witnesses that the instrument not in his handwriting is his will, the Legislature no ■doubt intended it as a safeguard against imposition and fraud. The provisions of the statute quoted are mandatory, and there must be substantial compliance therewith. To hold that requirement was complied with in this instance, it seems to us, would subvert the purpose and intent of the statute, and would amount to a disregard of its substance."

The burden of proof rested upon the proponent of the will in controversy to establish by a preponderance of the evidence that the same was executed and published according to the provisions of the statute. See McCarty et al. v. Weatherly et al., supra.

It is urged in the argument that in this ease there is no intimation of fraud, and thac to adopt a too literal interpretation of the statute would defeat the intent of the testatrix in the disposition ox her estate. To this it may be replied as pointed out in the text from Ruling Case Law, hereinbefore quoted, that the statute was enacted primarily to' prevent fraud.

To accomplish chis purpose certain formalities are thrown around the execution of a nonholographic will, which formalities, if dispensed with, would undoubtedly open the door to fraud and enable designing persons to secure rights in the property of deceased persons not granted under the laws of descent and distribution.

'if hardship sometimes results in individual cases it must not be permitted to weigh against the interests of that larger group of innocent victims who might be exposed to the cupidity of designing persons if strict compliance with the provisions of the statutes should not be regarded as necessary to the validity of the will.

From examination of the entire record we are of thé opinion that the, judgment of the trial court is, correct, and should be and is hereby affirmed.

jBy the Court: It is so ordered.  