A testator cannot in his will reserve the right to alter or complete it by a subsequent unattested paper ; Thayer v. Wellington, 9 Allen (Mass.) 283, 85 Am. Dec. 753; but he may provide that the disposition of property shall be altered by the occurrence of extrin sic events ; Robert v. Corning, 89 N. Y. 225 ; In re Moore, 61 N. J. Eq. 616, 47 Atl. 731; and such event may be in control of the tes tator ; 3 Myl. & Cr. 507.
As in England and this country the pri mary purpose of a will is the transmission of property after death, it is sometimes said in a general way that an instrument testa mentary in form, which contains no disposi tion of •property, is not a will, and should not be admitted to probate ; so a letter to an undertaker authorizing the cremation of the writer's body, and saying, "My brother will be sole administrator and take charge of the estate," was held not to appoint an executor, or make a devise, or to be entitled to pro bate; In re Meade's Estate, 118 Cal. 428, 50 Pac. 541, 62 Am. St. Rep. 244. But where a writing merely made a declaration of the le gitimacy of two children and revoked all testamentary dispositions, it was held that the paper should be admitted to probate ; In re Williamson's Will, 6 Ohio N. P. 79. The court said that the paper was drafted in Paris by a French lawyer, educated in the civil law, under which the primary object of a will is the appointment of a ;bores, and not the devolution of property, which follows the appointment as of course, with universal succession. The court further cited Colton v. Colton, 127 U. S. 300, 309, 8 Sup. Ct. 1164, 32 L. Ed. 138, where the court adopted Black stone's definition (2 Com. 499) declaring a will to "be a legal declaration of a man's in tention, which he wills to be performed after his death," without any actual mention of devolution of property. In another case, the death of the sole devisee, legatee, and execu trix named therein, was held no ground for defeating probate of a will ; In re Davis' Will, 182 N. Y. 468, 75 N. E. 530.
Wills are unwritten or nuncupative, and written. See NUNCUPATIVE WILL.
A will may be written in pencil. But it is a strong indication that the will so writ ten was not a final act, but merely a delibera tive one. This indication may, however, be overcome by proof ; Myers v. Vanderbelt, 84 Pa. 510, 24 Am. Rep. 227 ; 1 Hagg. 219 ; 3 Moo. P. C. 223; 23 Beay. 195 ; and it has been held that the use of a pencil in writing a will, otherwise duly executed, or in making alterations in such will, raises no presump tion of want of deliberation and finality, and that its use may be as conclusive as to the intent of the testator as any other ; La Rue v. Lee, 63 W. Va. 388, 60 S. E. 388, 14 L. R.
A. (N. S.) 968, 129 Am. St. Rep. 978.
A letter in lead pencil, addressed to nobody by name, but clearly intended for those who should have control of the writer's property after her death, and requesting that certain things be given to persons named is a will ; its precatory form is immaterial. It is not essential that the full name should be signed (here it was "Harriet"); Knox's Estate, 131 Pa. 220, 18 Atl. 1021, 6 L. R. A. 353, 17 Am. St. Rep. 798.
It was held in Pennsylvania that writing on a slate is insufficient ; Reed v. Woodward, 11' Phila. (Pa.) 541; but in a note to the cita tion of this case a gucere is suggested wheth er a slate and pencil might not be used in an extreme case ; Schoul. Wills § 258, note.
There is no set form of a will. A paper in the form of a deed, if testamentary, may be proved as a will; Lincoln v. Felt, 132 Mich. 49, 92 N. W. 780; but it is not a will merely because ineffectual to operate as a deed ; Estate of Skerrett, 67 Cal. 585, 8 Pac. 181. In case of ambiguity, parol evidence has been permitted to prove which it is ; Robertson v. Dunn, 6 N. C. 133, 5 Am. Dec. 525; L. R. 15 P. D. 156; in other cases it was excluded ; Clay v. Layton, 134 Mich. 317, 96 N. W. 458; Noble v. Fickes, 230 Ill. 594, 82 N. E. 950, 13 L. R. A. (N. S.) 1203, 12 Ann. Cas. 282. A letter may serve as a wiil ; Mil am v. Stanley, 111 S. W. 296, 33 Ky. L. Rep. 783, 17 L. R. A. (N. S.) 1126 ; In re Billis' Will, 122 La. 539, 47 South. 884, 129 Am. St. Rep. 355 ; but an instrument in the form of a statutory deed is not testamentary simply because it is not to take effect before the grantor's death; Garrison v. McLain (Tex.) 112 S. W. 773 ; where a will referred to cer tain articles in an uncontested memorandum it was held that probate could not be refused on the ground that it was not the entire will of the testator; In re Reins' Estate, 59 Misc. 126, 112 N. Y. Supp. 203 ; marginal interlinea tions in a will will not invalidate it unless they are below the signature ; In re Gibson's Will, 128 App. Div. 769, 113 N. Y. Supp. 266.
The jurisdiction of the courts to pass upon the construction of a will is not ousted by a direction in a will that the executors are to define its provisions, and that their decision shall be final and conclusive upon all matters in it ; In re Reilly's Estate, 200 Pa. 288, 49 Atl. 939.
As to construction of wills, see LEGACY ; DEVISE.