In re Estate of Shillaber

Paterson, J. J. — The document which was admitted to-probate in this proceeding is wholly in the handwriting of Mrs. Shillaber, deceased. The third clause of the will reads as follows: “I give and bequeath to my said executor my silverware, jewelry, paintings, organ, clothing of every description, carriage, library, bas relievos, bronzes, statuary, excepting my three large pieces, viz., ‘ Delilah,’ * Saul,’ and ‘ Lost Pleiad,’ and request him to dispose of the same in the manner specified in my letter [146]to him of this date.” After the execution of this will, she dictated a letter to Carroll Cook, Esq., named in her will as executor thereof. This letter is in the handwriting of Mr. Cook, but is signed by the deceased. It commenced as follows:—

“ San Francisco, Cal., September 8,1884.

“ To Carrol Cook, Esq., San Francisco, Cal.

“My Dear Nephew,— In my will, which I have this day executed, I have left certain personal property to you to be disposed of by you as I should by letter direct. I desire the following disposition made thereof, viz.,” etc. (Here follow directions for disposition of the articles above-named.)

The court found — and the finding is supported by evidence — that the letter was dictated and signed after the execution of the will. Upon the objection that the letter was not in existence at the time of the execution of the will it was excluded, and the document, which is wholly in the handwriting of Mrs. Shillaber, was admitted to probate. It is claimed by appellant that the two documents were designed to constitute one instrument; that they are such in law, and as they are not wholly in the handwriting of the deceased, they do not constitute a valid olographic will.

All the authorities to which our attention has been called agree that any paper may be referred to, and may be a part of the will, if such paper be in existence at the time of the execution thereof. If the will be duly executed and attested, the paper referred to, whether attested or not, will become a part of the will, if it be already in existence, and is clearly described and identified. The identification must be by a description given of the paper in the will. In the case at bar, the letter referred to was not in existence at the time of the execution of the will. It has been held that “ a reference in a will may be in such terms as to exclude parol testimony, as where it is to papers not yet written, or where