In Re Estate of Cook

LORIGAN, J.

The deceased on April 25, 1915, being about to go to a hospital to have an operation performed, wrote and sent three letters—one to a brother, another to her sisters and a brother jointly, and a third to a friend who was her business agent. She died on May 26, 1915. A petition was filed in the superior court of Orange County for the probate of the several letters referred to, as constituting the last will of decedent, and as no person was nominated therein as executor, that letters of administration with the will annexed be issued to John H. Higgens, a brother mentioned in one of the proffered letters as a legatee, and who was petitioner for the probate of the will. W. E. Cook, the husband of the deceased, filed a contest to the probate of said letters as the last will of deceased on the grounds, first, that the said letters were not testamentary writings, or testamentary in character, and, second, that even if testamentary in character, nevertheless they should be denied probate, because their taking effect as the last will of deceased was made conditional by her upon her death under an operation she was about to have performed when they were written; that her death did not occur therefrom, and hence said letters never became effective as the will of deceased. Contestant also prayed that in

[467]

the event of probate of said letters as the will of deceased, he, as surviving husband of deceased, be appointed administrator with the will annexed.

At the trial the court determined that the letters were of a testamentary character, admitted them to probate as the last will of deceased, and appointed the petitioner, the brother of deceased, administrator with the will annexed. The contestant husband appeals from the order.

As to the points made by appellant for a reversal: It is claimed, first, that the letters of deceased offered for probate were not testamentary in character. The letters were entirely written, dated, and signed by the deceased and sent to the parties to whom they were addressed. The evidence indicates, and the letters themselves state, that the deceased had been suffering for upward of fifteen or twenty years from a malignant disease, and had reached that condition of physical disability where the only hope held out to her for relief was through an operation which she had consented to undergo. It was the day before her departure for the hospital for that purpose that the three letters were written. She stated therein her intention of going to the hospital; that she had been very sick and felt that the only way to regain her health was through an operation; and that while everything might turn out in her favor, she felt that her condition was more serious than the doctor thought, and that she had reason to believe she might not live through it. She then proceeded to declare what she wished done respecting her funeral. She specified the cemetery and lot in which she wished to be buried, the kind of headstone she wanted and the inscription to he placed on it, and named the minister she wished to perform her funeral service. Standing alone, these matters would probably evidence only a desire as to the disposition of her body after her death. But, in addition, she then proceeded to make a disposition of her property. She declared that she wanted Pansy to have all her jewelry except a diamond ring. She wanted the proceeds of a mortgage to be collected by her business agent, to whom one of the letters is written, and such proceeds to be turned over to her brother James W. Higgens, together with the balance due “on the Neffs payments.” She directs further that all her clothing be sent to Alice. In one of the letters she declared that “after all expenses is paid if there is anything left I want it