Summary of Smith v. Weitzel, 47 Tenn.App. 375, 338 S.W.2d 628 (1960) 

Facts: Nan Hughes was an educated business woman with a substantial estate, consisting of a valuable home, furnishings, and considerable personal property constituting mainly of common stocks found in envelopes in her safe deposit box at the bank.  The envelopes were brown manila and had the words “property of” printed across the top, followed by “Name,” “Address,” and then “ Memoranda,” with several lines at the bottom.  At the very bottom “First National Bank, Clarksville, Tennessee.” Her will outlined her wish to bequeath stocks to certain relatives, directing that said gifts were located and allocated to each in envelopes bearing their names. Four years later she executed a codicil which made a different disposition for the house, but confirmed all other provisions of the will.

Issue: Whether the offered envelopes may be considered parts of the whole will as a legally sufficient integration and entitled to probate?

Holding: The true intent of the testator was ascertained.  The evidence supported the jury’s finding that the envelopes and their contents formed a part of the testamentary disposition by the testator. The essential requirements to establish the whole will have been met.

Procedure: Circuit Ct jury judgment for the proponents after judge admitted eight envelopes, containing stock certificates, to probate as part of the entire will; Ct. of App. Verdict and Judgment Affirmed.

Rule: A will may consist of several testamentary papers construed together where they unequivocally show that the writer intended them as a posthumous disposition of the estate.  An attested instrument may refer to and incorporate another instrument executed so long as reference is unmistakable or w/ extrinsic evid proof can be made so.  A separate writing may become part of the will, if properly identified, and does not evade statutory provisions requiring attestation.  Intent to incorporate or adopt an extrinsic paper must be determined from the language of the will read in the light of surrounding circumstances.

Rationale: There was material evidence that the envelopes and contents were in existence, at least, at the time the will was republished by the Codicil in 1953.  Where the language concerning the testamentary intent is ambiguous, extrinsic or parol evidence bearing on that intent is admissible.  Even if the papers are not subject to probate as holographs, the ct may look beyond the will itself to determine intent of the testator.  The Codicil of 1953 operated as a republishing of the will as of that date. The process of Integration is distinguished from Incorporation by reference.

Proponents: The contested papers are holographs, parts of the original Will and Codicil, that have been incorporated by reference or by independent significance.

Contestant: The writings on the envelopes cannot be probated as holographs b/c they are not testamentary in nature, form, or character, they do not contain a disposition of property upon death, nor do they depend on the death of the testatrix for consummation, they fail to show intent, and the material provisions of the writings are not in the handwriting of the testatrix.

The writings cannot be incorporated by reference b/c neither the will or codicil describe the existence or describe the identity of the envelopes.