To entitle the instrument propounded to probate, it must appear to be a will upon its face, or be shown to be such by those extrinsic circumstances which the law permits to be taken into consideration, as aids to construction. The signing and witnessing of an instrument inthe form prescribed for the execution of wills do not make the instrument a will. It must further " clearly appear," especially " where the paper is equivocal on its face, in order to be treated as testamentary, that it was intended by the maker to operate as a disposition of his estate after death." (1 Redf. on Wills, 170, Sec. 7.)
" Where a paper offered for probate bears upon its face the form and character of a will, the presumption of law will be in its favor, and will thus impose upon those who contest the probate the burden of showing that it was not in fact executed animo testandi. And on the other hand, where the paper is not apparently designed for a will, those who claim to have it operate as such will assume the burden of showing that it was so executed, that it can fairly be allowed to have such an operation." (1 Redf. 170, Sec. 7; 172, note 22; 181, note 47, and authorities there cited.)
" If a will be uncertain or unintelligible on its face, it is as if no will had been made; quod voluit non dixit." (Mann's Case, 1 Johns. Ch. 235.)
A will " limited by a condition as to its operation, becomes wholly inoperative after a failure of the condition, and cannot be admitted to probate; " but in order to defeat the probate, " the condition must appear upon the face of the will, and go to its entire subversion." (1 Redf. 180, and note.)
The instrument propounded does not purport to be the last will of H. F. Wood, deceased. It is not a will unless the word " intestate" be stricken from it. This word, as employed, is not opposed to any general intent, to be gathered from the whole instrument and the circumstances in evidence, or from any portion of either; nor does it conflict with any other particular intent, expressed or implied. Indeed, the phrase, " in the event of my dying intestate," expresses the only general intent appearing from the instrument. All else is comparatively particular. The event of " dying intestate" is the general condition on which everything else is made to depend. On this general condition, Wood wished two particular things: first, " five thousand dollars to go to John C. Cole; " second, " the balance of my property to be held by Robert C. Beatie, to be disposed of by him as his judgment may dictate." Why not as well strike out the two words " dying intestate?" Logically considered, they are as closely connectedas the first and second syllables of the word " intestate." But the word " dying" must be retained, since it is the only word in the instrument showing that it is to take effect after death, that being material to constitute it a will. (See 1 Redf. 425-436; Wright v. Den, 10 Wheat. 225; Findlay v King's Lessee, 3 Peters, 374; 4 Kent, 655.)
JUDGES: Sawyer, C. J.
OPINION
SAWYER, Judge
This is an appeal from the judgment of the Probate Court of Sierra County, refusing to admit to probate the following instrument, claimed to be the last will and testament of F. H. Wood, deceased, viz: " I wish five thousand dollars to go to John C. Cole, in the event of my dying intestate, and the balance of my property to be held by Robert C. Beatie, to be disposed of by him as his judgment may dictate. H. F. WOOD.
" San Francisco, Cal., February 5th, 1863.
" Witness: S. H. Seymour, Wm. H. Ladd."
The only question is, whether this is a will or not. The execution of it is satisfactorily proved, and found by the Probate Court.
After carefully considering the able argument of respondent's counsel, we are satisfied that the instrument, upon its face, is testamentary in its character, and must be construed to be a will. It clearly fills the definition of a will given by approved writers on that branch of the law, viz: " the declaration of a man's mind as to the manner in which he would have his property or estate disposed of after death." (1 Jarman on Wills, 1. See, also, 1 Redf. on Wills, 5, Sec. 2.)
This instrument certainly declares the mind of the deceased as to the manner in which he would have his property disposed of, in case he should die after the execution of the instrument, without any other or further manifestation of his wishes. Suppose he had died within twenty-four hours after the execution of this instrument, without any change in his circumstances, or any other manifestation of his desires with respect to his property, could it be for a moment plausibly contended that the document thus executed would not express his mind and intentions as to what disposition should be made of his property? To so hold would be to assert that he drew up, signed, and called two persons to witness the execution of this instrument, in the mode prescribed by law, for no purpose whatever. He must have intended from the transaction to accomplish something. We are not authorized to suppose he designed to do a void act. The instrument shows what disposition the deceased intended to make of his property, and this disposition was not to take effect till after his death. The only possible embarrassment arises from his inapt use of the term " intestate" in the phrase, " in the event of my dying intestate." It is argued that, if this instrument is a will, then the deceased did not die intestate, and the event upon which the property was to take the direction indicated has not, and cannot, transpire--that the word, " intestate," has but one meaning, and the deceased must be presumed to have used the word in its only recognized sense, and that he could not have intended this instrument to operate as a will; because, if he did, he would not die intestate, and he must have known that the event contemplated was impossible. But to adopt this view would be to convict the deceased of doing an absurd thing, without any apparent motive. He would then have taken the trouble to draw up and formally execute an instrument in the presence of the number of witnesses required to make a valid will, on the eve of his departure for Mexico, declaring the disposition which he wished made of his property, in case of his death, when he knew that it was impossible that the event could ever arise, upon which it could take effect; for, if he should make a will, he would not die intestate, and if the instrument executed, is a will, he would not die intestate; and if it is not a will, it would be inoperative, and would not effectuate his purpose. If a word has no meaning, or is absurd or repugnant to the clear intention manifested in other parts, it may be regarded as surplusage, or restricted in its application. (Bartlett v King, 12 Mass. 542; 1 Jarman on Wills, 393, and notes; Wright v. Den, 10 Wheat. 239; Finlay v. King's Lessee, 3 Pet. 376.) We see no reason why the same rule should not apply in interpreting the language of an instrument for the purpose of determining whether it is a will or not.
This instrument evidently was not drawn by an attorney. It was probably drawn by the party himself. It was very informal, and the legal term, " intestate," was undoubtedly very loosely used, and manifestly without any very accurate appreciation, at the time, of its precise meaning; and this circumstance is entitled to consideration, with a view to a liberal interpretation. (1 Redf. on Wills, 429, note.) Upon the whole instrument, it is perfectly plain to our minds, that the deceased intended to make a disposition of his property in case of his death, and he evidently meant by the term, " dying intestate," without making any further or other will. Upon no other hypothesis can any force or effect be given to an instrument which he was so careful to execute in the presence of two witnesses, in order that it might be valid. We are not at liberty to suppose that he used a single word in the instrument in a sense that would defeat the operation of the whole instrument, which he had so anxiously prepared upon the eve of his departure upon an expedition, more or less perilous, to Mexico. Reflecting that he might not live to return, he evidently intended, in that event, to make a disposition of his property. The language used is of a testamentary character, and sufficient, under the decisions, to make a disposition of the property, upon the happening of the event contemplated. (Morrell v. Dickey, 1 Johns. Ch. 155; 1 Redf. on Wills, 173, 174, Secs. 10 and 11, and the cases there cited.) We are satisfied that the instrument is a will, and that the Probate Court erred in not admitting it to probate.
The appellant asks us, in our judgment, to direct letters testamentary to issue to the petitioner. The prayer in the petition is in the alternative, that letters testamentary, or letters of administration with the will annexed, be issued to the petitioner. He is not named executor in the will, and only letters of administration with the will annexed would be proper. But the Court below, upon the view taken, did not have occasion to determine whether it was proper to confer this important trust upon the petitioner, and the record does not afford any data upon which we are authorized to determine this important question. It must, therefore, be left open for the further consideration of the Court below.
Judgment and order reversed, and the Probate Court directed to admit the will to probate, and to take such further proceedings as the exigencies of the case require.