Opinion
No. 4383.
Argued March 1, 1955.
Decided March 25, 1955.
Where an instrument of instructions to the executor was neither referred to nor identified in the testator's will duly executed prior thereto, the doctrine of incorporation by reference was inapplicable and the will was unaffected by it in the absence of execution in compliance with the statute of wills.
The testamentary intent in the execution of a will must exist when the document is signed or acknowledged before and attested and subscribed by each of the necessary three witnesses.
Hence where the testator signed an instrument of instructions to his executor with but one subscribing witness on the afternoon of the same day his will was duly executed and a decade later altered the instrument with but two subscribing witnesses there was insufficient attestation and the instrument was without testamentary effect.
A precatory request by the testator, in an instrument of no testamentary effect, that the executor of his will in his discretion settle an "outlawed account" in a reasonable manner was not such a direct and unqualified promise to pay the account as to remove the bar of the statute of limitations.
CERTIFICATION, of questions of law to the Supreme Court by the probate court of Merrimack County, pursuant to R. L., c. 346, s. 29, as inserted by Laws 1947, c. 90. The facts are not in dispute.
The will of George E. Amor, dated May 23, 1941, devised all of his estate to his second cousin Priscilla Gowen, subject only to a bequest for a family tombstone. The will appointed attorney Maurice Nichols as executor. This will was proved and allowed in common form on November 12, 1952, when administration, with will annexed, was granted to John H. Morrill.
On the same day that the will was executed the testator signed an instrument [exhibit B] addressed to Maurice Nichols "executor this day named in my 1st [sic] will and testament:" For the purposes of this case the pertinent part of the instrument follows: "It is my desire that you as far as possible follow the following instructions in the settlement and management of my estate . . . There is an outlawed account due to Charles Barnet which I wish you to settle in a reasonable manner either to him or his estate. The amount to be paid I leave to your discretion believing that you will be fair in the matter." This instrument was witnessed by Ellena J. Rolfe, one of the attesting witnesses to the will. The probate court summarized her testimony as follows:
"Ellena J. Rolfe testified that she could not positively recall that Mr. Amor signed the instrument in her presence or that he identified his signature, but that she did sign the instrument then dated May 23, 1941, in his presence and at his request."
On March 9, 1952, George E. Amor made certain changes and additions in this instrument which are described by the probate court:
"LaForest C. Whitehouse and Charles L. Foote testified that, on March 9, 1952, while they were both at his home, Mr. Amor took the instrument from his desk and asked them to subscribe their names as witnesses, which they both did in his presence and in the presence of each other. He said it was a change in his will and that he wanted to see that Mr. Barnett was paid. They both saw Mr. Amor cross out the name of Maurice Nichols and write in the name of John H. Morrill, Mr. Amor stating that this was being done because Mr. Nichols had left the state. They also saw him add the date of March 9, 1952, beneath the previous date. Mr. Amor did not identify his signature, but both Mr. Whitehouse and Mr. Foote testified that they were familiar with his signature and recognized it as such. Mr. Whitehouse wrote the date of March 9, 1952, at the bottom of the instrument."
The probate court transferred three questions: "1. Whether or not this instrument (Exhibit B) was signed by George E. Amor and attested and subscribed by three witnesses according to the requirements of Section 2 of Chapter 350 of the Revised Laws? 2. Whether or not the said instrument has any testamentary or legal effect? 3. Such further instructions as the Supreme Court may consider necessary or proper."
George P. Cofran and Paul A. Rinden (Mr. Rinden orally), for Priscilla Gowen.
Donald G. Rainie for the administrator w.w.a., furnished no brief.
Charles H. Barnett, pro se, furnished no brief.
The doctrine of incorporation by reference is recognized in this jurisdiction but the principal reason why it cannot apply to this case is that the will did not refer to or identify the instrument of instructions to the executor (exhibit B). Hastings v. Bridge, 86 N.H. 247, 249; 1 Page, Wills (3d ed.) s. 249; Souhegan National Bank v. Kenison, 92 N.H. 117, 119. Since the attempt to incorporate the instrument of instructions into the will by reference was ineffective, the will cannot be affected by it. Hills v. D'Amours, 95 N.H. 130, 138. See In re York Estate, 95 N.H. 435, 437. Therefore the instrument of instructions can be effective only if it complies with the statute of wills. R. L., c. 350, s. 2; Laws 1943, c. 93, s. 2.
The valid execution of a will in this state has not been over-burdened with common-law technicalities. Welch v. Adams, 63 N.H. 344. One who signs an acknowledgment of the testator's signature as a justice of the peace is considered as a proper attesting and subscribing witness to the will within the meaning of our statute of wills. "If technical reasons could be assigned for holding that there was not a compliance with the statute, they would not be entitled to prevail against the practical reasons for the opposite result." Tilton v. Daniels, 79 N.H. 368, 370. A vacillating and uncertain attesting witness in Daley v. Judge of Probate, 90 N.H. 381, did not overcome the presumption of the regular execution of a will which prevails here. Edgerly v. Edgerly, 73 N.H. 407. By the same token attesting witnesses are considered competent even though they may receive some indirect benefit under the will. Cochran v. Brown, 76 N.H. 9; Leonard v. Stanton, 93 N.H. 113. These cases indicate a definite policy of sustaining the execution of a will wherever possible and this policy is not of recent origin. Marston v. Marston, 17 N.H. 503; Welch v. Adams, 63 N.H. 344.
In spite of the policy of sustaining the execution of a will, the statute requires that the testator's will shall be attested and subscribed by three credible witnesses. R. L., c. 350, s. 2; Laws 1943, c. 93, s. 2. The instrument of instructions was witnessed by only one witness when it was first executed in 1941 and by only two witnesses when it was altered in 1952. The testamentary intent "must exist when the [instrument] is signed or acknowledged before and attested and subscribed by each of the necessary three witnesses." Fleming v. Morrison, 187 Mass. 120, 123. The record does not disclose that when the letter of instruction was signed in 1941 by the deceased that he had any testamentary intention. Having just executed a will that day he presumably knew the requisite formalities for a valid will. When he undertook to execute the letter of instruction as a will in 1952 only two witnesses subscribed. This was not a sufficient attestation under the statute of wills and was "without testamentary effect." Ruel v. Hardy, 90 N.H. 240, 246; Hastings v. Bridge, 86 N.H. 247, 250.
The precatory request in the instrument that the executor in his discretion settle the "outlawed account" in a reasonable manner was not a direct and unqualified promise to pay the, account so as to remove the bar of the statute of limitations. See Levensaler v. Batchelder, 84 N.H. 192, 194; Shepherd v. Thompson, 122 U.S. 231, 235.
The answer to the first and second questions is "no" and no further answer is required for the third question.
Remanded.
All concurred.