Salvation Army v. Rohde

FRAMPTON, J. pro tem.* This is an appeal from an order admitting will to probate and from that portion of the order denying probate to language found on an envelope, a copy of which was attached to the petition for probate of will.

Josephine M. Olson died February 12, 1961, leaving an estate valued at approximately $369,000. This consisted of cash $99,000 and 3,500 shares of common stock in the Simonds Saw and Steel Company of the approximate value of $270,000. Upon opening her safe deposit box, there were found three pages of a typewritten will (pp. 1, 4, 5), signed and witnessed bearing date June 25,1954, and a holographic will, written on both sides of one piece of paper and bearing date December 15,1958. Both of the foregoing were contained in an envelope which had the following typewritten upon its face:1 ‘ Copy of: Last Will and Testament of Josephine Marie Olson.” The face and back of the envelope both contained handwriting which according to the evidence presented upon the hearing of the petition for probate of will, was that of the deceased.

The three pages of the typewritten will, the holographic will and the envelope were filed with the county clerk for safe keeping and photostatic copies of the holographic will, envelope and pages 1 and 5 of the typewritten will were attached to the petition for probate of will together with a typewritten copy of the holographic will.

The petition filed by deceased’s nephew Rolland Rhode, alleges “That said deceased left a Will dated Dec. 15, 1958, which your petitioner alleges to be the last Will of said deceased, and which is presented herewith; that a copy of [236]said will is annexed to this petition, marked exhibit ‘A.’ ” The printed paragraph 6 of the petition, relating to a conventional, witnessed will was crossed out and pursuant to the printed instruction on the form (“If an holograph will, so state and strike out paragraph 6.”), a typewritten paragraph was substituted as follows: “6. That said will is entirely written, dated and signed in the handwriting of the testator.” The petition concludes with the prayer “that the said Will may be admitted to probate, and that Letters Testamentary be issued to your petitioner, and that for that purpose a time be appointed for proving said Will and that due notice thereof be given according to law, and that all necessary and proper orders may be made in the premises.”

None of the documents attached to the petition was marked “exhibit A” nor were the documents as a whole so marked. The only other reference to them as Exhibit A is found in the affidavit of Holland Rohde in support of the petition, wherein in one paragraph he refers to the holographic will dated December 15,1958, as Exhibit A and later on he refers to Exhibit A as including the holographic will of December 15, 1958, the envelope and the typewritten will of June 25, 1954.