McCaffrey Will , 453 Pa. 416 ( 1973 )

Opinion by

Mr. Justice Roberts,

James J. McCaffrey died on March 1:6, 1961, leaving two testamentary instruments—a holographic will dated in 1939, and a conformed copy of a 1947 will.¹ Both instruments were lodged with the register of wills but only the 1939 document was offered for probate. In 1964, the register of wills determined that the 1947 will could not Tbe probated and that the 1939 writing should be admitted to probate. Appellee—administratrix of the heir-at-law—appealed to the Orphans’ Court of Philadelphia which vacated probate of the 1939 will. The court en banc dismissed exceptions and, on November 10,1966, ordered that the record be remanded to the register of wills so that the 1947 will could be offered for probate. We quashed an appeal from that determination on November 28, 1967.

Thereafter, in accordance with the decree of the orphans’ court, the register of wills considered the 1947 testamentary writing and admitted it to probate.² Ap-pellee again appealed to the orphans’ court which set aside probate of the 1947 will. The court en banc dismissed appellants’ exceptions and this appeal followed. We now reverse.

Appellants contend that the orphans’ court erroneously held that the 1947 will was revoked. In 1953, decedent’s home was burglarized and the 1947 will was among the items stolen. Although decedent knew of the theft, he made no other will during the seven years prior to his death. The orphans’ court concluded from this inaction that decedent revoked his 1947 testamentary instrument.³

We hold that the 1947 will should be admitted to probate and distribution should be made to the charities in accordance with that last, valid testamentary instrument. The record fails to disclose that the 1947 will was revoked in a maimer prescribed by Section 5 of the Wills Act, Act of April 24, 1947, P. L. 89, §5, 20 P.S. §180.5 (1950).⁴ That section provides:

“No will or codicil in writing, or any part thereof, can be revoked or altered otherwise than:

“ (1) Will or Codicil. By some other will or codicil in writing,

“(2) Other writing. By some other writing declaring the same, executed and proved in the manner required of wills, or

“(3) Act to the document. By being burnt, tom, canceled, obliterated, or destroyed, with the intent and for the purpose of revocation, by the testator himself or by another person in his presence and by his express direction. If such act is done by any persons other than the testator, the direction of the testator must be proved by the oaths or affirmations of two competent witnesses.”

The express, specific, and literal language of Section 5 was legislatively designed to preclude revocation by any method other than that explicitly stated in the revocation section. The statutory language—and the decisions of this Court—with unquestioned clarity mandate that a will can be revoked only by one of the methods authorized by the statute. “Section 5 of the Wills Act of 1947 provides the manner in which a will may be revoked.” Leonard Estate, 427 Pa. 363, 366, 234 A. 2d 856, 857-58 (1967). See also Williams’ Estate, 336 Pa. 235, 9 A. 2d 377 (1939); Setter’s Estate, 265 Pa. 202, 108 Atl. 614 (1919); Clingan v. Mitcheltree, 31 Pa. 25 (1856); Lewis v. Lewis, 2 W. & S. 455 (1841); 5 Hunter, Pennsylvania Orphans’ Court Commonplace Book, Revocation of Wills § §1 et seq. (1959).

As one commentator has noted: “To revoke a will or codicil, in whole or in part, it is necessary to do certain acts with a certain intent. The statute prescribes the available methods so far as the objective act is concerned. Unless one of these methods is used, no revocation is accomplished, regardless of how clear the intention to revoke may be. Thus in Williams’ Estate, 336 Pa. 235 (1939), the testator wrote ‘this will to be destroyed’ at the top of one of the pages of his will, but probate was nevertheless ordered because none of the methods enumerated in the statute for revoking a will had been followed. The notation was unsigned so that it did not qualify as a revocation by another writing; and since the provisions of the will remained untouched by the added words they did not constitute a cancellation, obliteration or destruction.” Bregy, Pennsylvania Intestate, Wills and Estate Act of 1947, Wills Act §5, ¶3 (1949) (footnote omitted) (emphasis added).

The record distinctly reveals that the original 1947 will was stolen when decedent’s home was burglarized.⁵ There is no evidence whatsoever that the 1947 will was “burnt, tom, cancelled, obliterated, or destroyed with the intent and for the purpose of revocation, by the testator himself or by another person in his presence and by Ms express direction.” Act of April 24, 1947, P. L. 89, §5, 20 P.S. §180.5(3) (1950).

Since the record fails to reveal that the decedent revoked his 1947 will in a manner designated by Section 5, which prescribes the sole and exclusive methods for revocation, we are unable to conclude—as did the majority in the orphans’ court—that there was an effective revocation. Moreover, we are unwilling to subscribe to the notion that from the decedent’s failure to make a new will, it can be presumed he intended to revoke the stolen will. Such inaction does not constitute a revocation within the meaning of Section 5. “[A] once perfect will must remain such, unless repealed, altered, or destroyed in one of the ways designated by the act . . . .” Seiter’s Estate, supra at 206, 108 Atl. at 615.

It must be concluded that: “Under a statute such an the Statute of Frauds or the Statute of Victoria, which requires the testator’s intention to revoke to be expressed by some act manifest on the will or by a subsequent will or codicil, it would seem impossible to revoke a will by a subsequent ratification of an act which was done without the testator’s authority. When the act was done, it did not operate as a revocation; and to hold that the subsequent ratification makes such act amount to a revocation, is to ignore the provisions of such statutes and to revoke the will by the testator’s subsequent oral declarations.” 2 Page on Wills §21.32 (I960).⁶

The decree of the orphans’ court is reversed and the record remanded for proceedings consistent with this opinion.

Each party to pay own costs.

1 Both wills bequeathed decedent’s entire estate to similar charitable purposes.

2 Appellee urges that since the register of wills held, in 1964, that the 1947 will could not be probated and since no appeal was taken from that determination, appellants are precluded from offering the 1947 will for probate by the Act of June 28, 1951, P. L. 638, art. II, §208, 20 P.S. §1840.208 (1964). That section provides that a party in interest who is aggrieved by a decree of the register of wills “may appeal therefrom within two years of the decree . . . .” In view of the fact that, on November 10, 1966, the orphans’ court en banc ordered that “probate is opened” and directed that the 1947 will be offered for probate, we find appeUee’s contention meritless.

3 The orphans’ court relied on this Court’s 1891 decision in Deaves’s Estate, 140 Pa. 242, 21 Atl. 395 (1891). Deaves’s Estate, however, has been correctly interpreted to be merely a routine application of the doctrine that a testator in possession of a will prior to his death is presumed to have destroyed the missing document absent proof to the contrary. See Murray Will, 404 Pa. 120, 129 n.13, 171 A. 2d 171, 176 n.13 (1961); Fallon’s Estate, 214 Pa. 584, 585, 63 Atl. 889 (1906); Annot., Proof of Nonrevocation in Proceedings to Establish Lost Will, 3 A.L.R. 2d 949, 967 (1949).

4 Repealed and replaced without change by the Act of June 30, 1972, P. L. 508, No. 169, §2, 20 P.S. §2505 (1972).

5 A copy of the 1947 wiU, retained by decedent’s lawyer, was sent to decedent. It was this copy which was properly offered for probate. See Murray Will, 404 Pa. 120, 171 A. 2d 171 (1961) (probate of copy of will); Baum Estate, 418 Pa. 404, 211 A. 2d 521 (1965) (carbon copy).

6 In view of our disposition, we need not reach appellants’ alternative claim that, if the 1947 will is held to have been revoked, the 1939 will—which was expressly revoked by the 1947 will—is revived.