In re the Probate of the Paper Propounded as the Will of Clark , 1 Tuck. Surr. 445 ( 1870 )

The Subeogate.

The facts of this case are, that the paper propounded as a will was executed by the decedent with the legal formalities, that it was found in the drawer ' of decedent’s bureau, by the proponent, a legatee, after the death of decedent, and that, when found, the. signature of the decedent was partially obliterated by two or more lines in ink, drawn across it, and the name, of the: proponent, as legatee, in the body of the will, was also obliterated in like manner. The sole question in the case is, whether the law presumes a ’ revocation to havé been made by the decedent, of the whole will, or any part of the same. We are left in the dark as to when these obliterating lines were made, or by whom, or with what purpose or intent. We have nothing but the facts I have recounted, and the law, applicable to such facts, to guide us to a conclusion.

The Revised Statutes say:

“¡No will in writing (except in the cases, &c.), nor any part thereof, shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person, in his presence, by his direction and consent. And, when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses.” (3 R. S., 5th ed., p. 144, § 37.)

In the present case there is no proof that the obliteration was done by any other person than the decedent; and the provision of the statute that the affirmative evidence of at least two persons shall be produced, does not apply. We fall back upon the Common Law of evidence and of presumption. Williams on Executors, vol. 1, p. 85, says: “ If a testament was in the custody of the testator, and on his death it is found among his repositories, canceled or defaced, the testator, himself, is presumed to have done the act, and the law < presumes that he did it animo rerocandi. The modern authorities have now settled that the animus is to be presumed, till the contrary is proved.” [And see note in 2 Greenleaf on Ev., § 681; also 1 Jarman on Wills, p. 119.]

JRedfield on Wills, p. 307, says: “ The rule of evidence in the Ecclesiastical Courts, in regard to presumptive revocation, from the absence or mutilation of the will, seems to be, that if the will is traced into the testator’s possession and custody, and is there found mutilated, in any of the modes pointed out by the statute for revocation, or is not found at all, it will be presumed the testator destroyed it or mutilated it, animo revoocmcliP

There have been but few cases of revocation of wills reported in our State. In these, there appears to have been no distinction made between the case of an absolute disappearance of a will, and the case of a mutilation or cancellation.

In re the will of Claxton, 2 Brad. R., p. 334, it was held that: “If a will proved to have been executed, and to have been in the possession of the decedent, cannot be traced to the custody of another, or cannot be found, the presumption of law is, that it has been destroyed, animo r&oocandi.”

In re the will of Florence, 2 Brad. R., p. 281, it was held that: “ When the will is last traced to the possession of the testator, and on his decease it cannot be found, the presumption is that it was destroyed by the testator, animo revoeandil

In Idley v. Brown, 11 Wendell R., p. 227, Hr. Justice Sutherland said: “ A will proven to have had existence, but not found at the death of the testator, is presumed to have been destroyed by him, animo revooandi ; and it is incumbent upon a party who seeks to establish such a will, to repel that presumption, and show that it was improperly destroyed.” (And see Betts v. Jackson, 6 Wend. R., p. 173.)

There can be no doubt that the cancellation, obliteration and destruction of the signature of a will, must be considered as a revocation of the entire instrument. The statute requires of a will: “ It shall be subscribed by the testator, at the end of the will.” (3 R. S., 5th ed., p. 144, § 35.)

The statutes of several of our States are'similar in language to that of our State, and upon these constructions liave been placed, to which I am enabled, by the industry of the counsel for the half-blood next of kin, to refer.

T,he statute of the State of Hew Jersey is as follows:

“ No devise or bequest in writing, &c., or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing, declaring the same, or by burning, canceling, tearing or obliterating the same by the testator himself or in his presence, and by his direction and consent; but all devises and bequests, &c., shall remain and continue in force until the same be burnt, canceled, torn or obliterated by the testator or by his directions in manner aforesaid, or unless the same be revoked or altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or more subscribing witnesses, declaring such revocation or alteration.” (Nix. Digest, 913, § 2.)

In the. case of Smock v. Smock, 3 Stock. R., p. 156, the will was found in decedent’s desk, after his death, with seal and signature cut out. The Chancellor said:

“ The will was in the custody of the testator during his life, and upon his death it was found among his depositories, canceled, with his name and seal cut off. Under such circumstances, the testator himself is presumed to have done the act, and the law further presumes that lie did it ani/mo revocandi. (1 Williams on Exrs., 78.) * * * The complainant produces the will. But upon its face it is a mutilated, canceled will. It is not suggested that it was canceled by mistake or accident.” "x" * * “It is not suggested that it was canceled under circumstances which would render the act inoperative and ineffectual under the express provisions of the statute, as if done by some other person than the testator, but not in his presence, although by his direction and consent. The will is presented under circumstances from which the presumption arises that it was canceled in a manner which the statute declares- effectual—by tearing or obliterating the same by the testator himself.” - * * “ This presumption arises from the fact that the will was in the possession of the testator during his lifetime, and at his death was found among his papers mutilated in a way showing a design to cancel it.” * * * “ The complainant must overcome the presumption which- exists against the validity of the instrument. As-the ease stands, he has no alternative but to take the ground, that this will was mutilated criminally by some person other than the testator.”

The statute of the State, of Pennsylvania is- as follows: “¡No will in writing, &c., shall be repealed, nor shall any devise or. direction therein be altered; otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved, &c., or by burning, canceling or obliterating, or destroying the same by the testator himself, or .by some one in his presence and by his express direction.” (Purdon’s Dig., p. 1017, §16.)

In the case, under this statute, of The Baptist Church v. Robbarts, 2 Barr. R., p. 110, the will wás found, after death, in a.locked secretary, in an envelope with the seal broken, and the signature of the' testator obliterated by a pen being run- through it.-. The Court said: “ A strong black line was drawn over and along the whole name. It is in vain to infer, from the evidence in the case, wh,en or how this wás done. The will was found in the private chamber of the deceased, in- his dwelling, and locked in his private desk. The name was obliterated, and the will canceled.- The legal presumption, arising on the evidence, -was, that it was the act of the testator. 'There was no evidence that it was done by accident or mistake, or to disconnect the act from an intention to revoke.. It was a canceled will. (Dunlap on Wills, 346.) It.is true, the name being obliterated, it is at first blush an equivocal -act. But the paper being found in the manner in evidence, and. being, mutilated, it. lay. on the plaintiffs, who wished to establish the will, to give evidence how it was done. Without that evidence, the legal inference is that the testator did it himself. The onus was cast on the plaintiff before this obliterated paper could be read to the jury.” Judgment rejecting the will affirmed.

■ [And see the late case of Evans, 58 Perm. R,p. 238.] The statute of the State of Forth Carolina is as follows: “Bo will or testament in writing, or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other wilting declaring the same, or by burning, canceling, tearing, or obliterating the same, by the testator himself, or in his presen.ee and by his direction and consent; but all wills or testaments shall remain and continue in force until the same shall be burnt, canceled, torn or obliterated by the testator,.or in his presence and by his consent and direction, or unless the same be altered or revoked by another will or paper, &c.” (Rev. Code of N. C., p. 610, § 22.)

In the case of Bethell v. Moore, 2 Dev. & Batt., 316, under this statute, the will was found with perpendicular lines drawn between every two letters of the signature and another signature, not obliterated; directly beneath that, and two or three papers purporting to be -intended codicils prepared, and the whole laid away together.

• Chief Justice Ruffin said: “ There appears to be a cancellation,- and it becomes necessary to look at the extent of it, at all the conduct of the testator, at what he proposed doing at the time, and what he did afterwards, to satisfy the mind whether that was, in fact, meant as a canceling, and was to .operate as a revocation immediately and absolutely, or only conditionally upon the contemplation of something elsé then in view. For, although every act of canceling imports, prima facie, that it was done OMwno revoccmdi, yet it is but a presumption which may be repelled by accompanying or.subsequent circumstances.” (p. 318.) . “ Supposing thatwe are to look upon the signature, though not effaced, as canceled by the lattice lines

t through it, the inquiry remains, whether that ivas done with the intent to revoke the instrument, and, if so, to do it immediately .and absolutely. It may be admitted that the legal presumption is in the affirmative. Still there is enough to go to the jury as evidence that the revocation was not self-subsisting, but was ivith the further view of making' a new will,-with alterations, that the testator immediately changed that purpose, and preferred that his will should stand and the alterations be introduced by.way of codicil.”

The Vermont case to which I am referred on the points, is one of a lost will. (Minkler v. Minkler, 14 Verm. R., p. 125.)

Such are the American cases. The English cases are much more numerous. Here, as in o.ur own..States, it is • necessary to quote the exact text of the statutes, that the effect' of the constructions given by the Courts, may be fully understood.

The English statute of 29 Charles IIychajp. 3, § 6, is: “Ho devise.of lands, &c., nor any clause thereof, shall be . revocable,.otherwise than by some -other will or .codicil-in writing, declaring the same; or by burning, canceling, tearing or obliterating the. same, by the testator himself, or in-his presence and by his directions and consent.” And the statute of.l. Victoria, is: “Ho will or codicil, or any part thereof, shall be revoked, otherwise than (by will or other writing) or by burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.” . ....

• In the case of Moore v. De Laterre, 1 Phil., 375, the will was found in a small box, in which decedent’s papers were kept. Part of it was cut off. Sir John Hicholl said: “ The Court must examine the appearance of the instrument itself; the three sheets, were connected by tape, sealed by her own seal, the same seal annexed to the will itself. The fact is, that some one has carefully cut out, apparently with scissors, the whole of the instrument or margin, so as to detach it from its frame; the attestation clause also is cut through. It is the duty of the Court to put a rational construction on this act. In my judgment it must have been done for the purpose of canceling, revoking and destroying the validity of this instrument. I can put no other rational construction on the act; it must have been done, not equivocally, but decidedly, for the purpose of revoking the instrument.” * *

“ The instrument being presumptively revoked, the next question is, by whom ? Here there can be no difficulty ; it was found in her own possession; and it is not suggested that any other person had access to it.”

The Court then goes on to say that this presumption must be repelled by showing some other purpose intended in mutilating the will, or that it was done by another person, adding: “ It is not enough to suggest.” Probate denied.

In Rickarts v. Mumford, 2 Phill., p. 23, Sir John Hicholl said: “Where the testator has the will in his own custody, and that will cannot be found after his death, the presumption is that he has destroyed it himself, It cannot be presumed that the destruction has taken place by any other person, without his knowledge or authority, for that would be presuming a crime.”

In Wilson v. Wilson, 3 Phill., 543, Sir John Hicholl said: “ The last we hear of it (the will), is that the deceased, immediately upon its execution, put it in his pocket and took it away with him. It must have been destroyed, it is presumed, by the deceased himself. ” We have no fact from which the time of such destruction is necessarily to be inferred.”

Similar views are enunciated in Colvin v. Fraser, 2 Hagg., p. 166; Freeman v. Gibbons, 2 Hagg., p. 325 ; Boughty v. Moreton, 3 Hagg., p. 191; Lambdell v. Lambdell, 3 Hagg.,p. 568; Hare v. Nesmith, 3 Hagg., p. 192; in re Lewis, 1 S. W. and Tr., p. 31; Wynn v. Heveringham, 1 Coll., p. 638; Davis v. Davis, 2 Addoms' Ec. R., p. 226; Moggridge v. Thackwell, 7 Ves. Jr.,p. 79; Price v. Powell, 3 Hurlstone and N., p. 341.

There is an absolute uniformity in these cases. They all hold to the doctrine of legal presumption where the will 'is found mutilated in the possession of the decedent, or has disappeared after being last traced to his possession. It is nowhere held that the contestant,"the party opposing probate, must account for the mutilation or disappearance of the .instrument, or must show such injury to have been the act of the decedent.

In the case at bar, the will was executed by the decedent in the office of her lawyer, and we are left in absolute ignorance of what became of it from that mbment until after her death. The witnesses to' the will think that it was given by the decedent to her lawyer, Mr. Bagley, but their impressions do not amount to a recollection. It was last seen in her hands by the witness Smith. After the decedent’s death, and before her 'burial, it was found. The envelope was found torn open, and the signature and the name of the principal legatee found canceled. 17o person has been shown to have been in the 'room where it was found, except the decedent, the legatee and her uncle, _who is her witness. Under these- circumstances, I must hold that the evidence which has been adduced by the proponent herself, raises the presumption of cancellation and revocation by the- decedent.