Allday v. Cage
1912 Tex. App. LEXIS 1132, 148 S.W. 838 (1912)
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Rule of Law:
An extraneous written instrument may be incorporated by reference into a will if it is clearly identified in the will and physically exists in writing at the time the will is executed, even if it is not formally subscribed, acknowledged, or proved as an executed legal instrument.
Facts:
- Mrs. M. J. Crow was a member of the firm Cage & Crow, Bankers, engaged in a general banking business in Stephenville, Texas.
- On September 14, 1910, Mrs. M. J. Crow and the other firm members (J. H. Cage, John Cage, Day Cage, Jessie White, and F. S. White) entered into a written 'memorandum of agreement'.
- This agreement stipulated that the firm Cage & Crow would not dissolve upon the death of any member but would continue in operation for five years, during which the deceased member's deposit or interest would remain with the surviving members.
- The September 14, 1910 agreement also expressly annulled a prior contract dated November 10, 1905, and was acknowledged by the parties before P. L. Pittman, a notary public.
- Mrs. M. J. Crow executed her last will and testament, which included 'Item Fourteenth' expressly directing that the September 14, 1910 agreement 'shall be in all respects adhered to, observed and carried out.'
- Mrs. Crow executed her will and the September 14, 1910 agreement simultaneously, attaching her signature to the will before signing the agreement.
Procedural Posture:
- B. O. Cage, as executor of Mrs. M. J. Crow's will, instituted a proceeding for the probate of her will in the county court of Erath county.
- Rebecca Allday and others filed a contest against the probate of the will.
- The county court admitted the will to probate.
- The contestants appealed the county court's decision to the district court.
- The district court also admitted the will to probate.
- The contestants prosecuted an appeal from the final judgment of the district court to this court.
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Issue:
Does an extraneous written agreement need to be formally subscribed, acknowledged, or proven as an executed instrument, in addition to being clearly identified and in existence as a written document, at the time a will is executed to be validly incorporated by reference into the will?
Opinions:
Majority - SPEER, J.
No, an extraneous written agreement does not need to be formally subscribed, acknowledged, or proven as an executed instrument to be validly incorporated by reference into a will, so long as it is clearly identified and exists as a written document at the time the will is executed. The court clarified that the rule requiring an extraneous instrument to be 'in existence' at the time of the will's execution serves the purpose of identity and certainty, not to impose contractual or other legal obligations on the incorporated document itself. It is met when the terms of the instrument are actually reduced to writing, and it does not require subscription, acknowledgment, or proof as a separate executed legal document. The agreement's force derives from the execution of the will, which incorporates its language, rather than from the agreement being a fully executed instrument on its own. The description of the agreement in Mrs. Crow's will was deemed sufficient to prevent any reasonable probability of mistake. The simultaneous execution of the will and the agreement, with the agreement's terms already in writing, satisfied the 'in existence' requirement. The court also held that objections to the contract's validity or terms (e.g., being contradictory or void) were not appropriate for a probate proceeding, which focuses solely on the validity of the will itself. The court cited Heidenheimer v. Bauman, Tonnele v. Rall, and Bullock v. Bullock in support of its reasoning.
Analysis:
This case is significant for clarifying the 'in existence' requirement for incorporating an extraneous document into a will by reference. It distinguishes between the physical existence of a written document and its formal execution as a legally binding instrument, confirming that only the former is necessary for incorporation. This interpretation broadens the scope for testators to integrate existing documents that reflect their testamentary intent without rigid formal requirements for the incorporated document itself. The ruling promotes the fulfillment of testamentary intent while maintaining the safeguard of clear identification, impacting how wills referring to other unexecuted documents are evaluated in probate.
