Kehr Will , 373 Pa. 473 ( 1953 )

Opinion by

Mr. Justice Bell,

Testatrix’s daughter appeals from a decrée of the Orphans’; Court which sustained an order of the Register of Wills,'which admitted decedent’s will to probate and held an alleged revocation to be inapplicable and nugatory. The crucial question is: Was the testatrix’s will, dated August 7, 1942, revoked by the writing of the words “Null and Void” on a carbon copy of the will, together with the attendant and extrinsic circumstances?

Mrs. Kehr left her original will for safe-keeping with her attorney, Rowland C. Evans, Sr., and received from him and took home with her an exact carbon copy. The will gave testatrix’s estate principally to charities and contained no provision for the petitioner, who is testatrix’s only child.

Mrs. Kehr died on July 2, 1951, and Rowland C. Evans, Jr. probated her will of August 7, 1942, and qualified as executor. An exact carbon copy of the original will was found after Mrs. Kehr’s death in a bureau drawer in her bedroom. At the top of the first page of this unexecuted copy, in the blank space above the typewritten words of the will, she had written in ink the words “Null and Void” and under these words “S. H. K.” It was duly proved and the Court below found that the words “Null and Void” and the initials were all in decedent’s handwriting.

Did this show a revocatory intent and if so, what did the testatrix attempt to revoke? To answer these questions we must place ourselves in the armchair of the testatrix at the time of the alleged revocation and consider all the facts and circumstances surrounding her: Jackson’s Estate, 337 Pa. 561, 12 A. 2d 338; Britt Estate, 369 Pa. 450, 87 A. 2d 243.

In Jackson’s Estate, 337 Pa., supra, this Court said (pp. 565, 566) : “. . . in interpreting wills [or alleged revocatory writings] which do not unmistakably reveal the maker’s intention ... ‘You may place yourself . . . in the testator’s arm-chair and consider the circumstances by which he was surrounded ... to assist you in arriving at his intention.’ See Jarman on Wills, 7th ed., 749.”

Mr. Evans testified that Mrs. Kehr did not have her original will because he had refused to deliver it to her until she paid him a fee for drawing it. This evidence was, under the aforesaid authorities, clearly admissible since it was one of the important facts and circumstances surrounding testatrix when she wrote the words “Null and Void” on the copy of her will.

Mr. Evans also testified that Mrs. Kehr wrote him two letters in the summer of 1946 (which he could not find) in which she stated that her will was null and void and had been cancelled; and that she intended to make a new will which would be prepared by Mr. Hermes. The testimony concerning testatrix’s intention to make a new will was corroborated by the finding of the Auditing Judge: “Other pencilled memoranda, in the handwriting of testatrix, appeared among her personal effects. These memoranda indicate that she was preparing data incident to the drawing of a new will. However, no such will was discovered.”

Whenever an instrument is ambiguous or the intention to will or to revoke is uncertain, acts, declarations and relevant circumstances are admissible to clarify or explain the ambiguity or to prove testator’s intention. This evidence of decedent’s acts and declarations and the relevant circumstances are therefore admissible under the facts in this case (1) as (corroborative) evidence of her intent to revoke when she used the words “Null and Void”; and (2) as an explanation of what the words “Null and Void” on the carbon copy referred to, i.e., her original will. Cf. Ford’s Estate, 301 Pa. 183, 195, 151 A. 789; Wenz’s Estate, 345 Pa. 393, 29 A. 2d 13; Koehler’s Estate, 316 Pa. 321, 323, 175 A. 424; Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20; Commonwealth v. Truitt, 369 Pa. 72, 85 A. 2d 425; Jackson’s Estate, 337 Pa., supra.

“Statements tending to show intent are admissible in evidence although self-serving”: Smith v. Smith, 364 Pa. 1, 9, 70 A. 2d 630. Speaking of this type of evidence, Professor Wigmore in his treatise on Evidence (3rd Ed., Vol. 6, §1737) says: “But since the question is here merely one of the existence of a state of mind, may we not infer the testator’s then state of mind from his state of mind at a prior or subsequent time not too remote? . . . hence, as evidence of this prior or subsequent state of mind, utterances at the prior or subsequent time are admissible.” Just as the animus testandi is an indispensable ingredient of a will, so the animus revocandi is an indispensable ingredient of a revoking instrument: Cf. Wenz’s Estate, 345 Pa., supra.

Were all these facts and circumstances considered together sufficient to prove a revocation of the will of August 7, 1942?

The Wills Act of 1947 (April 24, 1947, P. L. 89, 20 PS 180.1 et seq.) provides: “Section 5. Revocation of a Will. — 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, . . .”.

Several questions immediately arise: (a) Was this unexecuted copy of her will “some other writing”; (b) did the words used amount to a declaration of revocation; (c) were the initials a sufficient signature or execution; (d) was the revocation signed at the end of the revoking instrument; and if all these questions are answered in the affirmative, (e) what do the words “Null and Void” refer and apply to?

These are close questions but they are made closer and more difficult by the following additional facts: On the first page of this carbon copy are several spelling corrections, namely, the “z” in Suzanna is stricken and above it is inserted an “s” in ink; in the fourth paragraph, the “Y” in Yarlborrough is stricken and inserted above it is the letter “M” and to the right thereof appears an “M” and the initials “S. H. K.”, all in pencil. A penciled “X” has been drawn through the third, fifth and tenth paragraphs.^* At the bottom of this page there is inserted in penciled handwriting, apparently not that of decedent, “7th Aug.” in the blank space in the typing, where the date of the will is normally inserted. The same date appears in the original will.^**

The words “some other writing” are plain and mean just what they say. No particular form or specific kind of language, instrument or writing are required; “it can be any sort of writing”; even an ineffective will has been held to be “some other writing” and hence a sufficient compliance with the Act: Harrison’s Estate, 316 Pa. 15, 173 A. 407; Gray Will, 365 Pa. 411, 76 A. 2d 169; Burtt Will, 353 Pa. 217, 44 A. 2d 670.

The words “Null and Void” are clear; and undoubtedly amount to a declaration of revocation. “. . . the declaration of revocation need not be express, it may ... be by necessary implication”: Gray Will, 365 Pa., supra.

Was the revoking instrument executed in the manner required of wills, i.e., “Every will . . . shall be signed by the testator at the end thereof . . .”? This clearly means that the revoking instrument must be signed by testator at the end of the revocation just as a will must be signed at the end of a will. “The end contemplated by the statute is the logical end of the language used by decedent in expressing his testamentary [here, his revocatory] purpose”: Coyne Will, 349 Pa. 331, 333, 37 A. 2d 509. There is no doubt in our minds that the revoking instrument was signed at the end thereof.

The Court below further found, and we agree, that the signature by the initials is sufficient in this case to constitute the signature and execution required by the Wills Act.

In Knox’s Estate, 131 Pa. 220, 18 A. 1021, this Court said, (p. 231) : “What, therefore, shall constitute a sufficient signature must depend largely on the custom of the time and place, the habit of the individual, and the circumstances of each particular case. As already seen, the English and some American cases hold that a signature by initials only, or otherwise informal and short of full name, may be a valid execution of a will or a contract, if the intent to execute is apparent”.

We are therefore convinced that the requirements of the Wills Act providing for revocation of a will “by some other writing declaring the same, executed and proved in the manner required of wills” have been sufficiently complied with if the revocation is applicable to testatrix’s will of August 7, 1942.

If the words “Null and Void”, followed by the signature of testatrix, had appeared at the same place on the original will as they did on the carbon copy, it would be sufficient to constitute a revocation or cancellation of the entire will. Do these words, appearing-on the carbon copy, apply to Mrs. Kehr’s original will? The facts and circumstances in this case are obviously very unusual. Mrs. Kehr could not obtain from her attorney her original will so that she might revoke or cancel or destroy it. She therefore did a natural and plausible thing for any laywoman to do under the circumstances— she wrote “Null and Void” on the carbon copy, thereby intending and declaring her will to be null and void. It must be recalled that she had only one will, viz., that of August 7, 1942; and when she wrote the words “Null and Void” on the exact copy of her original will it could refer to no other instrument than her original will. It would have been useless to write the words “Null and Void” on the copy if all Mrs. Kehr was referring to and declaring null and void was the copy, since the copy was unexecuted and had no validity or life. It would therefore be unreasonable to construe the revocation as applying to the carbon copy as distinguished from the original will, since the carbon copy, we repeat, never had any validity or life. This interpretation of the testatrix’s intent is corroborated and confirmed by the facts in the case, viz., (1) she could not obtain her original will to revoke or cancel it; and (2) she wrote her attorney stating (a) that her will was null and void and had been cancelled and (b) that she intended to make a new will; and (c) memoranda of a new -will were found in her handwriting among her personal effects.

We believe that the testatrix intended to, and under the exceptional facts in this case, succeeded in revoking her original will of August 7, 1942, by some other writing declared'the same revoked or cancelled,'which was .duly signed by her at the end thereof and proved in the manner' required by the Wills Act.

Decree reversed; costs to be paid out of the Estate.

* It is conceded that it was proved in the manner required of wills.

* The paragraphs through which “X” is drawn contained a legacy of $1000 to George Hoover Streeter; a legacy of $500 to the Union Home; and a gift of the residuary estate to St. Alban’s Chapter, Order of the Eastern Star.

** This presents no difficulty since the month and day of the year are often filled in in a will by the attorney, or stenographer, or by a witness, instead of by the testatrix.