Whitehill v. Halbing , 98 Conn. 21 ( 1922 )

The decisive question raised in this appeal is whether a later will containing a clause expressly revoking all former wills, takes effect immediately and finally, so that after its destruction by the testator a former will existing at the time of his death shall not be approved and set up as his last will. In deciding this question we are governed solely by the statute of wills of this State which was enacted in 1821. That statute changed the law which had been in force before that time and under which the case of James v.Marvin, 3 Conn. 576, was reserved for the consideration of this court. It changed "the aspect of the . . . question. It is not now what it was when James v.Marvin was decided." That case did not answer the precise question before us now. Peck's Appeal,50 Conn. 562, 565. And to this question that case is not applicable. Security Co. v. Snow, 70 Conn. 288, 294,39 A. 153. We said in Peck's Appeal, that before 1821, "any written declaration to that effect revoked a will irrespective of any statute and without regard to the death of the testator. Now the statute requires that the writing, in order to have that effect, must itself be a will or codicil, and executed with all the formalities required for such instruments." That statute, which has not been changed in any respect material to this subject, now reads: "No will or codicil shall be revoked in any other manner except by burning, cancelling, tearing or obliterating it by the testator or by some person in his presence by his direction or by a later will or codicil." General Statutes, § 4946. This statute is "not only directory but prohibitory and exhaustive."Irwin's Appeal, 33 Conn. 128, 135. It allows to every person the privilege of individual control over his estate after death only upon certain conditions, and no such power is given to "any person who does not come within and strictly comply with these conditions." Hatheway v. Smith, 79 Conn. 506,518, 65 A. 1058. The language of this statute is precise and unambiguous. No oral declaration, nor any writing, however framed or executed, whether it be an independent instrument or a clause in a will, can be effective at any time to revoke a will unless it has in itself all the characteristics of a will or codicil. "A will is the legal declaration of intention as to the disposition of one's property after death. To this intention, made known through the written declaration, the law gives effect, and so executes the testator's will."Jacobs v. Button, 79 Conn. 360, 362, 65 A. 150. The subject-matter of a will is the estate of the person, which can be affected by his intent properly expressed, "only after the death of the testator. The term may be thus defined. A will is the lawful intent of a competent person, legally expressed, regarding his estate, and effective after his death." 1 Alexander's Commentaries on Wills, p. 25. "A will is the expression, in the manner required by law, and operative for no purpose until death, of that which one may lawfully require to be done after his death." Gardner on Wills (2d Ed.) p. 1. Each devise or bequest thus expressed and made known in writing is the "will" of the testator, irrespective and independent of every other provision. Hatheway v. Smith, 79 Conn. 506, 511, 65 A. 1058. So, also, by the explicit terms of the statute, an effective revocatory clause, thus expressed and made known in writing, must be a "will." It is true, as was said in James v.Marvin, that such a clause "is never a necessary part" of a will. Neither is any other provision a necessary part of a will. Only the formalities prescribed by statute are necessary parts. Any other part may be omitted or may be changed by the testator without affecting another part which the will contains when it is presented for probate; but each of these parts, to be effective, must be a will. None has any vigor of its own. The strength of each is derived solely from the law which executes the legally expressed intention of the testator, but applies its force only after his death. The intention to devise is expressed usually in the present tense, as "I devise." So is the intention to revoke former wills, as "hereby revoking." But no one contends that a clause devising lands takes effect immediately upon the execution of the will and vests the title then in the devisee. There is no indication of the testator's intention to give, nor any logical reason for giving, to a revocatory clause more immediate force and results than are given to a devising clause. On the contrary, our statute of wills indicates plainly that such instantaneous force and final consequences were not to be given to any revocatory writing by itself. It was said in James v. Marvin, that at that time in this State "a clause of express revocation" in a will operated the same as "a deed of revocation separate from the will"; that is, instantaneously, of its own force, finally and irrespective of the subsequent destruction of the will. But the legislature did not see fit to include such a separate writing among the exclusive means whereby only a will may be revoked. The manifest inference is that it was not intended to continue to grant the privilege of revoking a will with the effect and consequences which a separate revocatory writing had before the statute was enacted.

By the common law of England before 1837, a revocatory clause in a will perished with the will. The effect of the destruction of a second will containing such a clause "was to revive the first." 1 Jarman on Wills (6th Eng. Ed.) 192; 1 Alexander's Commentaries on Wills, p. 754; Gardner on Wills (2d Ed.) p. 241. InGoodright v. Glazier, 4 Burr. 2512, Lord Mansfield said, in 1770: "A will is ambulatory till the death of the testator. If the testator lets it stand till he dies, it is his will; if he does not suffer it to do so, it is not his will. Here, he had two. He has cancelled the second: it has no effect, no operation; it is as no will at all, being cancelled before his death. But the former, which was never cancelled, stands as his will." And Mr. Justice Yates, concurring for the same reasons, added: "A will has no operation, till the death of the testator. This second will never operated: it was only intentional. The testator changed his intention; and cancelled it. If by making the second, the testator intended to revoke the former, yet that revocation was itself revocable: and he has revoked it." In 1774 Lord Mansfield declared in Harwood v. Goodright, 1 Cowper, 87, 92: "Therefore a revocation must be shown and the mode of doing that is by another will. But that is not all; for he [the heir at law] must show in fact, that it was revoked by another will which subsisted at the death of the testator; because if a testator makes one will and does not destroy it, though he makes another at any time virtually or expressly revoking the former; if he afterwards destroy the revocation, the first will is still in force and good." (The italics appear in the report.) This principle was recognized in Burtenshaw v. Gilbert, 1 Cowper, 49, 52, wherein the same respected authority, less than two months before the decision of Harwood v. Goodright, said that "a complete, legal, and effectual will" containing a revoking clause, if the testator had "died immediately after," would have revoked an existing former will; but that the cancelling of the later will did not set up a duplicate of a former will which had been cancelled by tearing off the testator's name and seal and cutting off the names of the witnesses. In none of these cases is found authority for the statement that an express revocation is a positive act of the testator, operating instantaneously, by its own force and independently of the consummation of the will in which it is found. On the contrary, the principle declared and applied in each case is that, to effect a revocation by a later will, that will must subsist at the death of the testator.

These decisions authoritatively interpreted and declared the meaning of the words in that section of the English statute of frauds which prescribed the only means by which wills could be revoked, and which was intended to prevent their revocation except as therein provided. While this provision was not expressly enacted in Connecticut until 1821, these decisions of the English courts were well known and respected by the lawyers and courts of this State; indeed, they had been regarded as authoritative statements of the common law of England brought to and adopted in this State. James v. Marvin, 3 Conn. 576; Card v. Grinman,5 Conn. 164, 168. When the legislature, by the exclusive and prohibitory terms of the Act of 1821, put into statutory form the law of Connecticut relating to the revocation of wills, it abolished by omission the privilege of revoking wills by word of mouth or by any other writing except a will or codicil, but it retained the other provisions of the statute of frauds, and expressed them in the identical words of that statute; namely, that "no devise of real estate shall be revoked otherwise than by burning, cancelling, or obliterating . . . or by some other will or codicil in writing." We are bound to assume that when the legislature adopted these words, it adopted the meaning and intended the force and consequences already attributed to them by the courts of England, and accepted as our common law. The committee of distinguished men which prepared the Revision of our statutes in which this provision first appeared, was appointed in 1820. They finished their work and made their report to the legislature in May, 1821. The proposed revision "underwent a patient and careful investigation," was adopted during the May session of 1821, and approved June 5th, 1821. Rev. 1821, pp. VII, IX, 486. During this time neither the revision committee nor the legislature had in mind any information to influence them in the interpretation of the language they adopted and used, or any reason to indicate any other intention which that language might express, except that which they had acquired from the decisions of the courts to which we have referred. The opinion in James v.Marvin was not within their knowledge, because it was not announced until after their investigations had been completed and the terms of their Act decided upon and approved. But whatever light these circumstances may throw upon the matter, we think the explicit and exclusive language of the Act of 1821 plainly indicates the intention of the legislature to declare, in words of which the meaning was clearly and firmly fixed, that "a later will or codicil" by which a will or codicil should be revoked, although it contain a clause of revocation, must be in existence and take effect at the death of the testator. It follows that the revocation or destruction of any later will sets up a then-existing former will in the place it held before the later will was made.

We have already held, and it is not questioned, that a later will not containing a revocatory clause, but in its provisions inconsistent with a former will, does not affect a former will until it takes effect at the death of the testator, and that in that respect the legislature did not intend by the Act of 1821 to change the then-prevailing law of this State. Peck's Appeal, 50 Conn. 562,565. The reason stated to support this principle is that an implied revocation by a later will with different devises and bequests is "ambulatory, until the death of the testator; for although, by making a second will, the testator intends to revoke the former, yet he may change his intentions, at any time before his death." James v. Marvin, 3 Conn. 576, 578. Or, as it is expressed by the author of a recent text-book, the reason is that the inconsistent provisions in the second will clearly manifest the intent of the testator to revoke the former will; "yet this intent, being purely testamentary in its character, can have no effect until the death of the testator, and, if the instrument containing it is destroyed before that time, this revocatory intent is, for legal purposes, as though it had never been, and the first will, being uncanceled, takes effect." Gardner on Wills (2d Ed.) p. 242. See also 1 Alexander's Commentaries on Wills, p. 756. These are the very reasons upon which the high authorities we have mentioned have rested their conclusion that a will with an express revocatory clause does not take effect until the death of the testator. In some cases an attempt is made to point out a difference between an implied revocation because of inconsistency and an express revocation. The former is conceded to be testamentary, and therefore ambulatory; the latter is assumed to be a separable writing, operating instantaneously and independently of the instrument in which it is expressed. No reason has been given which warrants such a distinction. It has no foundation except the dictum of judges. While they admit that all wills are ambulatory and that their devises, bequests and appointments of executors and trustees cannot take effect until the death of the testator, they single out the revocatory clause and invest it with a character quite different from that of a will. It has been asserted that the insertion of this clause is "a positive act," which operates instantly and by its own strength; but it is not explained how this particular provision becomes an act more "positive" than any other in the will, nor from what source it obtains the peculiar vigor that enables it to operate independently of the will, nor by what signs we know that the testator intended it to take effect immediately upon his execution of his will, nor by what principle of law he has been deprived, or has deprived himself, of the privilege and right to change his mind about revoking a former will and to resume his intention of letting it stand.

The clause of revocation is neither necessary nor nugatory. Its omission indicates the testator's intention that the later will shall revoke a former will only in such particulars as are inconsistent and so far as the inconsistency extends, and that in all other respects both wills shall be carried into effect. 1 Alexander's Commentaries on Wills, pp. 713-716; Gardner on Wills (2d Ed.) p. 238; 1 Schouler on Wills (5th Ed.) § 407. The insertion of a revocatory clause expresses the testator's intention to leave no place for inconsistency, but to wipe out all previous provisions he may have made and to substitute the provisions of the later will when it shall take effect on his death. Thus he effectually forestalls the conflicts and complications in construing the former and the later wills together, and "furnishes a more prompt and positive mode of repealing than simply to provide differently by the new will and trust to inferences." 1 Schouler on Wills (5th Ed.) § 417. This function manifestly cannot be useful unless a prior will be still in existence when the time arrives to present the later will for probate.

It would be difficult to demonstrate logically that an express revocatory clause was not a legal expression of the testator's intention respecting the disposition of his property after death, made known through a written declaration, to which the law will give effect only after his death and execute as his will; Jacobs v. Button,79 Conn. 360, 362, 65 A. 150; or that it is not the exercise of the testator's privilege of individual control of his property under the conditions prescribed by law;Hatheway v. Smith, 79 Conn. 506, 518, 65 A. 1058. If this declaration of intention is not a will, by the terms of the statute no will is revoked by it. If it is a will, it must have that essential quality of a will which is expressed by the word ambulatory. Page on Wills, p. 49. "It is this ambulatory quality which forms the characteristic of wills." 1 Jarman on Wills (6th Ed.) p. [*]18. The statute gives the testator a choice of several means of revoking a will, some of which are effective immediately and some only at his death. If he choose to use the ambulatory means, the law will uphold his choice and carry out his intention thus indicated. In Peck's Appeal, 50 Conn. 562, 566, we said that the weight of authority seemed to be in harmony with the conclusions expressed in 1 Redfield on Wills (4th Ed.) p. [*]328, concerning a will containing a clause of revocation, that "the whole instrument is, therefore, ambulatory, and when destroyed, it all ceases to have any operation." And we added: "We also think that to be the most reasonable view. The testatrix by executing the second will evinced no intention to become intestate, but rather a contrary intention. By destroying the last will and carefully preserving the first, she affords satisfactory evidence that she intended until the very last to die testate, and that that should be her will. In the absence of an express provision to that effect, we cannot presume that the legislature intended that the mere execution of a will should in all cases revoke a prior will. Such a construction would in many cases defeat the manifest intention of the testator. The statute requires a `later will or codicil.' We think that means an operative will or codicil." In that case the reasoning and authorities referred to were applied to a will not containing a clause of revocation. We are of the opinion that they apply with equal force to a will containing a clause of revocation. This conclusion has been expressed and applied in other jurisdictions since Peck's Appeal was before us in 1883.In re Gould's Will, 72 Vt. 316, 319, 47 A. 1082; Bates v. Hacking, 29 R. I. 1, 68 A. 622; In re Diament's Estate, 84 N.J. Eq. 135, 92 A. 952; Stetson v. Stetson,200 Ill. 601, 66 N.E. 262; 40 Cyc. 1215.

This principle of law was so strongly entrenched in England that a statute was needed to dislodge it. In 1837, the Parliament decreed that no will or codicil, or any part thereof, which should be in any manner revoked, should be revived otherwise than by the re-execution thereof, or by a codicil executed as required by the Act, and showing an intention to revive the same. 1 Victoria, Chap. 26, § 22. This statute in substance has been adopted in many of the States of this country, including New York, Indiana, Ohio, Kansas, Missouri and California. The decisions of the courts of these States are controlled by such legislation, and have therefore no direct bearing upon the subject of revivor in Connecticut, where no statute has been enacted. In Massachusetts, Vermont, New Hampshire, Maryland, Michigan, Minnesota and Pennsylvania, the statute permits wills to be revoked by "some other writing" than a will, if it be executed in the manner provided for the execution of wills. This, as we have seen, has not been the law of Connecticut since 1821. In Iowa, the code provides that a will may be revoked "by the execution of subsequent wills"; and accordingly it was held in Blackett v. Ziegler, 153 Iowa 344,133 N.W. 90, that "it is the execution of the instrument in proper form which effectuates the revocation." Decisions which are compelled or conclusively influenced by such local laws necessarily have little weight in our courts where no similar law is now in force.

In the present case, upon the facts agreed upon, the plaintiff asked the court to rule that the will of 1919 "irrevocably revoked" the will of 1914, and therefore to direct the jury to render a verdict for the appellant. This the court properly declined to do. Upon these facts the only conclusion which the jury could reasonably have reached was that the will of 1919, with its clause of revocation, did not immediately and finally take effect to revoke the will of 1914; that when she destroyed the will of 1919, the testatrix left the will of 1914, which she was carefully keeping in existence, in force as her will; and that no other will having been found, the will of 1914 was the only written declaration relating to the disposition of her property which subsisted at her death. Therefore, in directing a verdict sustaining this will, the court made no error.

This conclusion makes it unnecessary to consider the defendants' bill of exceptions.

There is no error.

In this opinion BEACH and CURTIS, Js., concurred; GAGER, J., concurred in the result, but died before the opinion was written.