Middleton v. Middleton , 188 Ark. 1022 ( 1934 )

The exegeses of the majority opinion are not warranted or justified under the facts and circumstances here presented. The facts are, no set of circumstances warrant or justify a court in nullifying a plain and simple statutory provision. It is not a matter of construing a statute, but one which ruthlessly destroys it. Subdivision 5, 10,494 of Crawford Moses' Digest has been the established law in this State since the Constitution of 1836. Until now it has been respected by all the courts. Probably minor individual hardships have resulted from its application, but the many wholesome benefits which are safeguarded by its terms have fully compensated therefor.

I agree with the majority that it was necessary for the chancellor to determine that a valid will was executed by the deceased before all order could be effected restoring it. The chancellor refused however, on the testimony presented, to restore this instrument as a will, and he was eminently correct in so doing.

The only testimony offered by the proponents of the will were beneficiaries thereunder. The majority opinion concedes that these beneficiaries were interested parties. Subdivision 5 of 10,494 in no unmistakable terms provides that a holographic will must be established "by the unimpeachable evidence of at least three disinterested witnesses." The majority opinion says: "The first answer to this contention is, that there was no controversy relative to the handwriting and signature of the testator." Certainly there was no controversy, because the man who executed the purported will was dead. The beneficiaries have no right to make a will for the testator, but this is exactly what is permitted by the majority opinion. If the plain provisions of the statute are to be ignored in the future, testators had much better die intestate than to risk the probation of their holographic wills. In the future it will only be necessary for the beneficiaries to get their wits together and determine for themselves the distribution of property and thereby nullify and destroy the effectiveness of the will. The statute itself brings into question whether or not there is a valid will, and this wholesome statutory provision stands out as a safeguard in behalf of the deceased until it is overcome by unimpeachable testimony from at least three disinterested witnesses. Any other construction of the statute nullifies and destroys it. Section 1231 of Crawford Moses' Digest, cited by the majority, has no application where the validity or invalidity of a will is involved.

It is next said by the majority that "the act of the appellants made it impossible to comply strictly with the provisions of the statute relative to the proof of holographic wills." No act of a beneficiary should be permitted to nullify and destroy a plain statutory provision. No question of estoppel should be invoked as against the deceased. Deceased knew, when he executed this purported will, that subdivision 5 was in existence. He had a right to expect that its provisions would be complied with before his will became effective. Until this was done, there was no valid will.

The majority opinion next says: "No man should be permitted to have an advantage by his own wrong." This is beside the question. There is no testimony that appellants or either of them would obtain an advantage by reason of the alleged destruction of the will. The kind and character of property owned by deceased, at the time of his death, is not disclosed by this record. A number of cases are cited in the majority opinion supporting the theory of presumption, but no case cited touches the question here presented. I assert, without fear of contradiction, that no case can be found which nullifies and destroys a plain statutory provision just to accomplish the purpose of some beneficiary. The facts are, all the authorities agree that a holographic will must be executed in accordance with statutory formalities. Section 366, Page on Wills, second edition. Not only this, but the authorities all agree that statutes providing for the execution of holographic wills are mandatory and not directory. In re Thor's Estate, 183 Cal. 512; In re Jenkins' Will, 157 N.C. 429. This court is now permitting a holographic will to be probated and established by beneficiaries in the will. These beneficiaries are directly and pecuniarily interested therein. I can not refrain from sounding this warning! Courts are established to construe statutes and not to legislate.

I am authorized to say that Justices SMITH and HUMPHREYS concur in the views herein expressed.