Where such incorporation by reference is permitted, compliance with the statute of wills requires that the paper or document sought to be incorporated by reference must be complete and in existence at the time and clearly described in the will. Bryan's Appeal, 77 Conn. 240; Newton v. Seaman's Friend Soc., 130 Mass. 91; Bemis v. Fletcher, 251 Mass. 178; Est. of Young, 123 Cal. 339; 68 L.R.A., Anno. 354."
These cases are not inconsistent with our conclusions. Again, the plaintiff relies upon Bryan's Appeal, 77 Conn. 240, 58 A. 748, 68 L.R.A. 353, 107 Am. St. Rep. 34, 1 Ann. Cas. 393 (1904); In re Estate of Reynolds, 273 Mich. 71, 262 N.W. 649 (1935); In re Acres' Will, 128 Misc. 254, 219 N.Y.S. 313 (1926). The cases cited support the general rule that ineffective references to extraneous documents or references to documents or papers which do not exist as a matter of fact must be disregarded and treated as surplusage.
It is testatrix's only last will. It is a sound rule that, in such case, ineffective references to extraneous documents are regarded as surplusage and do not affect testamentary dispositions of property made according to law. In re Acres Will, 128 Misc. Rep. 254 ( 219 N.Y. Supp. 313); Handley v. Palmer, 91 Fed. 948; Bryan's Appeal, 77 Conn. 240 ( 58 A. 748, 68 L.R.A. 353, 107 Am. St. Rep. 34, 1 Ann. Cas. 393). Affirmed, with costs.
In fact there is internal evidence in the book itself that it was not. Where such incorporation by reference is permitted, compliance with the statute of wills requires that the paper or document sought to be incorporated by reference must be complete and in existence at the time and clearly described in the will. Bryan's Appeal, 77 Conn. 240; Newton v. Seaman's Friend Soc., 130 Mass. 91; Bemis v. Fletcher, 251 Mass. 178; Est. of Young, 123 Cal. 339; 68 L. R. A., Anno. 354. This Court, therefore, can not say that the Court below erred as a matter of law in finding that the necessary conditions did not exist for incorporating this book into the will by reference. The remaining grounds of exception can be stated as a single proposition, viz., that there was no evidence of certain essential requisites on which to base a finding that the twenty-eight sheets of paper offered for probate as the last will and testament of Maud Gammans were all present at the time of the signing of page numbered twenty-eight on June 8 or 9, 1926, and were executed by her as one instrument as and for her will.
" See also Newton v. Seamen's Friend Soc., 130 Mass. 91, 39 Am. Rep. 433; Shulsky v. Shulsky, 98 Kan. 69, 157 P. 407; Watson v. Hinson, 162 N.C. 72 (5); Fickle v. Snepp, 97 Ind. 289, 291; In re Shillaber, 74 Cal. 144; Mortgage Trust Co. v. Moore, 50 N.E. (Ind.) 72; Bryan's Appeal, 77 Conn. 240, 68 L.R.A. 353 and annotations; 28 R.C.L. 112; 1 Woerner's Am. Law of Administration (2 Ed.), sec. 222, p. 510. It was not necessary that the deeds should have been presented to the court and formally and expressly certified as probated. [Estate of Willey, 128 Cal. 1, 56 P. 550, 60 P. 471; 40 Cyc. 1228, c. (3).] The proof of the will sets up and establishes the paper referred to as a portion of the will itself, by force of the reference and the consequent incorporation.
If, on a second hearing, this Exhibit A should not be declared a valid will, as an original and separate proposition, then, on the first or some issue properly responsive, the question should be decided whether Exhibit A is the "former will" referred to in Exhibit B, and has its identity been established by clear and satisfactory proof. In the appeal of W. J. Bryan, 77 Conn. 240, reported with an elaborate note in 68 L.R.A., p. 353, to which we were referred by counsel, while the principle of "incorporation by reference" is stated in somewhat more exacting terms than in some of the other decisions, the doctrine is recognized as the basis of the Court's ruling. In that appeal the sum of $50,000 was given "in trust for the purposes set forth in a sealed letter which will be found with this will," and Chief Justice Torrance, delivering the opinion, thus states the ratio decidendi of the case: "There is not in the language quoted, nor anywhere else in the will, any clear, explicit, unambiguous reference to any specific document as one existing and known to the testator at the time his will was executed.
This was not a reference in clear and precise terms to an existing document plainly and specifically identified; it was the creation of a general power which his wife might exercise by any future will. He did not restrict his bounty to the particular beneficiaries whom she had already named; he intended that this part of his estate should go to those to whom she might in future appoint it by any new and final will that she might make. He did not seek to incorporate into his own will the specific provisions which he had read in hers. The industry of counsel has referred us to a multitude of decisions upon this subject; but we know of none which could be wrested into a support of the contention that has been made. It is enough to refer to some of these cases: Newton v. Seaman's Friend Society, 130 Mass. 91; Thayer v. Wellington, 9 Allen, 283; Bryan's appeal, 77 Conn. 240, and 68 L.R.A. 353; Baker's appeal, 107 Penn. St. 381; Skinner v. American Bible Society, 92 Wis. 209; Schillinger v. Bawek, 135 Iowa, 131; Matthews v. McDade, 72 Ala. 377; Estate of Plumel, 151 Cal. 77; Goods of Smart, Prob. 238; Singleton v. Tomlinson, 3 App. Cas. 404. Vestry v. Bostwick, 8 App. Cas. D.C. 452. In accordance with the terms of the report, a decree is to be entered instructing the petitioners that Mrs. Lynch took no valid power of appointment under the will of her husband, and did not by her will make a valid appointment of any part of his estate, and that her nephews and nieces do not under his and her wills take any interest in his estate, but that the part of his estate which would have been at his wife's disposal if she had survived him must go to his next of kin as intestate estate.
No effect can be given to this letter as a part of the will, even if the evidence offered proves that it was in existence and known to the testator at the time the will was executed. We held in Bryan's Appeal, 77 Conn. 240, 246, that there was no such clear, explicit reference in the will itself to any specific document, as to incorporate the sealed letter into the will, and that such defective reference in the will could not be helped out by parol evidence. The letter cannot operate as a declaration of the trust upon which the money was bequeathed to Mrs. Bennett. Our statute of wills is not only directory but prohibitory.
Under all the authorities we have found this reference is not sufficient to incorporate any note or notes. As was said in Bryan's Appeal, 77 Conn. 240, 58 A. 748, 68 L.R.A. 353, 107 Am.St.Rep. 38, 1 Ann.Cas. 393: "`First, the paper must be in existence at the time of the execution of the will, and, secondly, the description must not be so vague as to be incapable of being applied to any instrument in particular, but must describe the instrument intended in clear and definite terms.' In a California case upon this subject this language is used: `But, before such an extrinsic document may be so incorporated, the description of it in the will itself must be so clear, explicit, and unambiguous as to leave its identity free from doubt. * * *' In an important and well-considered English case, decided in 1902, the court uses this language upon this subject: `But it is clear that, in order that the informal document should be incorporated in the validly executed document, the latter must refer to the former as a writing existing — that is, at the time of the execution — in such terms that it may be ascertained. * * * The document which it is sought to incorporate must be