44 A.2d 670 | Pa. | 1944
Lead Opinion
Mr. Justice LINN and Mr. Justice PATTERSON filed dissenting opinions.
Argued November 28, 1944; reargued April 10, 1945. This appeal concerns the revival of a revoked will.
The protracted litigation in this case was occasioned by the attempt of a layman to write his own will. The danger attending such an effort is aptly suggested by the late Judge JOHN MARSHALL GEST in his interesting book, Drawing Wills andSettlement of Estates in Pennsylvania. He employs the following language: "Every man who knows how to write thinks he knows how to write a will, and long may this happy hallucination possess the minds of our lay brethern, for surely St. Ives, the patron Saint of lawyers, extends to none a heartier welcome in the life beyond than to the Jolly Testator who makes his own will."
Decedent, in his holographic testamentary effort, succeeded in raising a question which for over two centuries has perplexed English and American judges and divided courts in both countries. The controversial topic is the revival of a prior will by the revocation of a later will. Extensive discussions on the question appear in the decided cases, legal encyclopaedias and articles in law *219 magazines and reviews, including one by a recent member of the United States Supreme Court written when an active lawyer and law school professor. To the already difficult problem decedent has added another question which has never before been squarely raised and decided in Pennsylvania, viz: does a distinction exist between a later revoked will containing anexpress clause of revocation and one where the revocation is occasioned because of inconsistent provisions? It is upon this subsidiary question that the litigation hinges.
Judge HUNTER, the hearing judge in the orphans' court, ruled that testator's later will revoked his earlier one because ofinconsistent provisions, under Section 20 of the Wills Act of June 7, 1917, P. L. 403, 20 PS section 181. He decided that under Ford's Estate,
The facts are undisputed. Decedent, a layman, in his late eighties, with a modest estate of $3500, was employed by, and had a desk in the office of, a highly respected member of the Philadelphia Bar. He was unmarried. His nearest of kin was a cousin. In a search for a will after the death, there was found in a locked drawer of his desk at the office, a mass of testamentary papers in decedent's handwriting consisting of between 50 and 60 sheets. None of the papers bore his signature except a will of 1906 and a will of 1939 in which the signature had been cancelled. There was also a note addressed to his executor, but it contained no testamentary dispositions. These papers constitute decedent's testamentary effort. The will of 1906 was the only paper susceptible of probate. It was probated. *220
This holographic will of 1906, written thirty-three years prior to the later cancelled will of 1939, is a mere remnant. In it 198 words are crossed out, three paragraphs are entirely obliterated and a fourth paragraph partially so, and 34 words are interlined. The words "Invalid" and "N. G." appear at the top of the paper and the word "Invalid" on the back, all in decedent's handwriting. With the cancellations eliminated, the remaining dispositive words are:
". . . it shall revert in its entirety, to . . . aforesaid; or, failing her by reason of her decease, said legacy
Mrs. Elizabeth Ange — shall revert to her children, man the survivor or survivors of them 3607 Fairmount Avenue, West Philadelphia."
Whether such a jumble of words constitutes an effective testamentary disposition is a matter of grave doubt. But however difficult it may have ultimately proven to declare testator's intent, we regard the writing, standing alone, as probatable, with its meaning a matter of will construction. SeeRockett Will,
The later will of 1939 was likewise imperfect. It consisted of five sheets of paper, in testator's handwriting, held together with a sliding metal clip. The will was not dated, but its approximate date was proven by the subscribing witnesses to be in the middle of August 1939. It disposed of the estate in an entirely different manner than the earlier will of 1906. Testator's signature and those of the subscribing witnesses to the 1939 will were crossed out.
It was proven by parol evidence that at the time decedent signed the will of 1939, he said that he was about to make a new will. A letter, signed by testator and written a few days after he executed the 1939 will, stated that he was then engaged in preparing another will as the final expression of his wishes. We are therefore *221 confronted with a probatable will, which had been revoked by a later inconsistent will. As such later will was subsequently revoked by cancellation, the ancient question arises whether evidence may be adduced to prove that testator did not intend to revive the prior will.
A will is defined by Blackstone, Vol. II — *449 as "The legal declaration of a man's intentions, which he wills to be performed after his death." It has been declared that this definition stands unchallenged for its simplicity and accuracy:McCunes Estate,
In early times there existed a divergence of opinions between the ecclesiastical law and the common law. The ecclesiastical courts decided that the revocation of the first will took effect at the execution of the second one, but that the first will might be revived if the evidence disclosed this to be the testator's intention. The common-law courts, on the contrary, took the position that a revocation of a prior will wasambulatory and therefore did not take effect until the death of testator; if the revoking will itself was subsequently revoked the former will stood as if the later will had never been executed. Two statutes were enacted by the English Parliament: *222 the Statute of Frauds, 29 Car. 11 (1676), C. 3, section 6, providing that no written will should be revoked "but by writing"; and the Statute of Victoria, 7 Wm. IV 1 Vic. C. 26, section 20 and section 22, which provided that "No will . . . which shall be in any manner revoked, shall be revived, otherwise than by the re-execution thereof. . . ." The English statutes settled the question in that country. Since the adoption of the Statute of Victoria, in England, once a will is revoked it may not be revived except by a formal republication.
In America, the forty-eight states have variously adopted the ecclesiastical law, the common law, or statutes upon the subject. For a review of the cases and articles supporting the foregoing summary see: 68 Corpus Juris, page 856, et seq.; Jarman on Wills (7th Ed.), Vol. 1, page 178; Page on Wills (Lifetime Edition), Vol. 1, page 858, et seq.; Hutton's Wills in Pennsylvania, page 218, et seq.; article by Professor W. W. Ferrier, Jr., "Revival of a Revoked Will", 28 California Law Review 265; article in 28 Kentucky Law Journal 227; annotation to Whitehill v. Halbing (Conn.), 28 A.L.R. at page 911; article by Owen J. Roberts (late a Justice of the United States Supreme Court), "The Revival of a prior Will by the Revocation of a Later Will", Vol. 48, The American Law Register, page 505.
The pivotal question in this case — may an intention be shown not to revive a former will where a later revoked will isinconsistent therewith — has been considered by various courts and authors. An examination of the cases, text books and articles above noted convinces us that the conclusions reached in 28 Kentucky Law Journal, at page 229, et seq., explain the situation most accurately: "Due to hasty statements on the part of text-writers and ill-considered dicta on the part of courts there is much more confusion on this matter than is justified by the actual holdings of the courts. This confusion is due in no small part to the fact that decisions are so often affected by the various state *223
statutes and because different jurisdictions follow different rules." And further, at page 233: "The question whether there is a distinction between a later will which revokes by express terms and one which revokes by implication, only, is inseparably connected with the proposition that express revocation is immediately effective. In many states this question is settled by statute. Although there are many dicta on the question only three states are generally conceded to distinguish between the two kinds of wills, and of these, only one has given . . . an unequivocal decision in both respects." The three states referred to by the writer are Texas, Michigan and Wisconsin. It is also interesting to note that this question was considered by the Hon. Roscoe Pound, a commissioner to the Supreme Court of Nebraska and later the Dean of the Harvard Law School, in Williams v. Miles,
The reason advanced for distinguishing between a revocation by express words and one by inconsistent terms reverts to the old argument as to when the revocation of the former will is effective. As noted above, the common-law theory was that a clause of revocation, like a dispositive provision, was ambulatory in nature and was therefore not effective until death. The ecclesiastical courts regarded the revocation asimmediate, but held that testator's intention not to revive could be shown. The few states which make this distinction regard the revocation by inconsistency as ambulatory. Logically there is no basis for such distinction. If a will is effectively revoked under any *224
of the terms of the Wills Act, the intention of the testator concerning the revival or non-revival of the prior will should be permitted to be shown. Apparently the first case in the United States to promulgate the distinction was James v.Marvin,
The distinction has never before been squarely raised in Pennsylvania. It is true that in the opinion in Ford's Estate
are quoted cases and text-book writers which make a distinction between express revocation and revocation resulting from later inconsistent provisions. This discussion is, of course, adictum, as Ford's Estate concerned a will in which there was anexpress clause of revocation. There is no difference inprinciple between a revocation by an express clause or byinconsistent provisions. If a testator bequeaths his estate to A, but subsequently concludes to give it to B, there is no fundamental difference in the expression of intention if testator says in the later will, "I revoke the bequest to A and give it to B", or if he says, "I give all my estate to B." In either instance testator has effectively revoked his former will in accordance with the provisions of the Wills Act.McClure's Estate,
There are apparently only six reported appellate cases in Pennsylvania which deal with the question of the revival of a former will by the cancellation of a later revoking will.
The first case, arising in 1792, was Lawson v. Morrison, 2 Dallas 286. In that case testatrix executed her will in 1775. She wrote a later will in 1779. Both wills were kept in the possession of a third person. At the death of testatrix the later will of 1779 was not found, although the will of 1775 remained intact. The contents of the will of 1779 were not proven and it was not established that it had revoked the former one. The syllabus concisely states: "The fact of the execution of a second will, not found at the decease of the testator, and the contents of which are not shown, is not, ipsofacto, the revocation of a former one; to have that effect, its existence must be shown, at the death of the testator, or that he cancelled the latter will, with an intent to die intestate." McKEAN, the Chief Justice, wrote (page 290): "Here is a goodsubsisting Will properly attested: There is no way to defeat it, but by proving it was revoked by another will, subsisting at the death of the Testatrix, or that she cancelled the latterWill, so revoking all former ones, with a mind to dieintestate" (italics supplied). It will thus be noted that as early as 1792 this Court stated that upon proving that a later will revoked the former one, the earlier will was not revivedwhere the testator was shown to have an intent to dieintestate.
The next case, which arose in 1796, was Boudinot v. Bradford, 2 Dallas 266. Testator executed a will, but later made another will which he later destroyed. Dr. *226 Rush (probably Dr. Benjamin Rush) testified to declarations of testator that he had made and destroyed his later will intending to die intestate. The court ruled that such testimony was admissible to establish "whether, by cancelling the second will, [testator] meant to revive the former instrument, or to die intestate." Chief Justice McKEAN, in his opinion, sustained this ruling and said (page 268) "1st. Where a second Will is made, containing an express clause of revocation, the preceding Will, though not formally cancelled, is revoked. 2d. Where a second Will is destroyed, without more, the preceding will, not having been cancelled, is, generally speaking, ipso facto, revived. 3d. Where a second will is cancelled, undercircumstances that manifest an intention either to revive, ornot to revive, the preceding Will, those circumstances must be proved." (Italics supplied.)
Apparently the next case, in 1848, was Flintham v. Bradford,
In 1909 the case of Kerchner's Estate,
The next case, decided in 1911, was Manning's Estate,
The leading case is Ford's Estate,
In discussing whether a non-probatable will constituted "another writing" under the Wills Act, Justice SCHAFFER said (page 188): "The court below bases its conclusion on the provisions of the 20th section of the Wills Act of June 7, 1917, P. L. 403, 409, which reads: 'Section 20(a) No will in writing, concerning any real estate, shall be repealed, nor shall any devise or directions therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided; or by burning, cancelling, obliterating, or destroying the same by the testator himself, or by someone in his presence and by his express direction. (b) No will in writing, concerning any personal estate, shall be repealed, nor shall any bequest or direction therein be altered, otherwise than as hereinbefore provided in the case of real estate' (with an exception as to nuncupative wills).
"We think the court too narrowly and literally viewed the language of the act and disregarded circumstances which should play a part in a just determination of what *229 the legal situation was which was created by the testator's acts. At the very outset of reasoning about the matter let it be observed that we are not dealing, as the court below seems to have concluded, with an attempt to set up an oral revocation of the will of 1924. It was revoked by writings admittedly signed by the testator, which writings so signed are produced. The court below says they are to be disregarded as writings to revoke the earlier will because as wills they could not be effective until he died, and neither for legal reasons was so effective. Dispositively this is so, but as 'other writings' which could be and were proved in the manner wills are, they were facts, which established that by solemn written declaration the decedent had wiped out the will of 1924. As against this we are asked to presume that when he tore and directed the further tearing of the pages of the 1927 will and thus revoked it, he intended to revive the one of 1924 when every circumstance in the record indicates that he did not."
On three occasions since, this Court has re-affirmed this principle, and has cited Ford's Estate, with approval. SeeShetter's Estate,
We are not unmindful that apparently Justice SHARSWOOD did not regard an unprobatable will as "another writing" under the Wills Act. He so said in Rudy v. Ulrich,
Ford's Estate was decided on September 29, 1930. This Court construed the 20th Section of the Wills Act of 1917, supra, and held an unprobatable will, signed by a testator, was "another writing" within the Act. This decision, unless changed by the legislature, has the same effect as if written into the body of the statute. Since the decision in Ford's Estate, there have been eight regular sessions of the Pennsylvania Legislature. If the legislature believed that the decision was contrary to the intent and language of the Wills Act, it could easily have so amended the 20th section of that Act as to make the decision inFord's Estate no longer controlling in cases arising subsequent to the amendment. In Salvation Army Case,
The doctrine of stare decisis still prevails in Pennsylvania. To change a legal principle vitally affecting property rights is a legislative and not a judicial function. This Court has always rigidly adhered to the rule of stare decisis. A statutory construction, once made and followed, should never be altered upon the changed views of new personnel of the court. All of the cases reciting our policy to adhere strictly to the rule of stare decisis need not be collected and reviewed. What was said by us in a few of the latest cases will suffice: Mr. Chief Justice MAXEY said in Monongahela St. Ry. v. Phila. Co.et al.,
The remaining question is whether the finding of the hearing judge "that testator had no intention, at the cancellation of the will of 1939, to revive the will of 1906, but on the contrary the cancellation was made with the intention of making a new will", is supported by the evidence. It was overwhelmingly established that testator did not intend to revive the 1906 will. In addition to the completely different disposition in the will of 1939, testator wrote the words "Invalid" and "N. G." on the will of 1906 (then thirty-three years old); he wrote letters, produced in evidence, that he was engaged in preparing a new will; and together with the many other reasons recited by the hearing judge the intent not to revive appears most conclusively. It is clear that testator preserved the mass of writings merely as memoranda and guides to his future contemplated testamentary "masterpiece", on which, according to his letter, he was then already engaged. As the hearing judge has stated, "The one circumstance in favor of the will of 1906 is its mere existence." Testator's intention will not be defeated by a groundless distinction between a later cancelled will containing an express clause of revocation and one making a completely inconsistent disposition. The earlier will in either case is presumptively revived. However, in this case, such presumption has been rebutted by evidence which overwhelmingly establishes testator's intentionnot to revive the prior will. *233
The decree of the court below is reversed. Costs to be paid by the appellees.
Justices LINN and PATTERSON dissent.
Dissenting Opinion
The question in this case is very simple: what did the legislature mean by section 20(a) of the Act of June 7, 1917, P. L. 403, 20 P.S. 271? "No will in writing . . . shall be repealed, nor . . . altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided"; the words "in the manner hereinbefore provided" refer to section 2, 20 P.S. 191, that "in all cases [the revocation] shall be proved by the oaths or affirmations of two or more competent witnesses; otherwise . . . shall be of no effect."1 We have held, in cases to be cited, that oral revocation was prohibited.
A will must be signed at the end, and if offered for probate, the signature must be proved by two witnesses. If the revoking paper is a will admitted to probate, no question arises:McClure's Estate,
The court now decides, as I understand it, that revocation may be shown by oral evidence. The opinion states that the decision is supported by Ford's Estate,
The majority opinion states that Ford's Estate was followed in three cases. But in what respect was it followed? The rule followed was that there may be no oral revocation. In the first case, Shetter's Estate,
The majority opinion speaks of stare decisis. The opinions in the Ford, Shetter, Harrison and Koehler cases say that oral revocation cannot be proved. Stare decisis would seem to require that in this case also we should hold, with the learned court below, that there can be no oral revocation. The record is clear that there is no signed "other writing"; no "other writing" with a signature capable of being proved by two witnesses as was the case with the two writings in Ford'sEstate.
The majority opinion speaks of rebutting a presumption of revival. The attempt to rebut was by oral evidence, *235 though we have consistently stated that oral revocation was prohibited.
I would affirm the decree appealed from.
Dissenting Opinion
I cannot agree with the majority opinion. The conclusion is unsupported by, and contrary to, the cases cited, imputes to the testator an intention wholly inconsistent with the admitted facts, and would impose upon the law of Pennsylvania an unwarranted extension of a principle, the soundness of which is seriously questioned.
Thomas A. Burtt died October 6, 1941, unmarried and without issue, leaving as next of kin a cousin, Jennie Burtt Wildrick, appellant. He was a layman, and for 33 years was employed by and had a desk in the office of a member of the Philadelphia bar. In the drawer of this desk he constantly kept his will of 1906. It may properly be assumed that he had some knowledge of the law of wills, and purposely destroyed the will of 1939. He left an estate of $3,500. From all the facts and circumstances Burtt, the decedent, departed this life in the firm belief that he would die testate. Nowhere in the record can there be found any suggestion that he wished to die intestate.
This conclusion is supported by the following undisputed facts: Found in a drawer of the desk at which he worked for many years was a will dated November 26, 1906. In the same drawer were found 50 or 60 pages of testamentary writings. Among these were six sheets of paper held together by a metal clip, constituting in part a cancelled will without a first page containing the usual formal directions and revocatory clause, executed some time in August, 1939. Decedent's signature thereon, as well as those of the two witnesses, had been canceled by testator by pen strokes through the respective names. The date of cancellation does not appear. The majority *236 and minority opinions of the orphans' court and the majority opinion of this Court concede that the will of 1906 was the only subsisting and probatable will. Numerous interlineations and cancellations appear thereon. Certain paragraphs had been crossed out, and in the handwriting of testator, at the top of the will, were written "Invalid" and "N. G." On the outer cover of the will he wrote the word, "Invalid." Unsigned marginal notations in testator's handwriting explained the cancellation of various paragraphs of the will or portions thereof, e. g., where the beneficiary died there appeared the word "deceased", and in the body of the will the name of such beneficiary was stricken out; the executor named in the will having died, a marginal notation appeared that another executor was to be appointed.
The third item of the will, with marginal notations in Burtt's handwriting, disposing of the residue, appears as follows:
"Third. All and every article or articles, money or monies of my said estate, personal or mixed, whichdeleted may remain in hand or in balance after deducting myas shown reasonable funeral expenses and the sums previouslyahead mentioned in Items First and Second, hereinabove, shall, without reservation or restriction whatsoever, be delivered to and paid over to my almost life-long friend, Lucas ("Luke") J. Krespach,Deceased Sexton of St. Joseph's Roman Catholic Church, Willing's Alley, 4th and Walnut Streets, Philadelphia, Pa.; or, failing him by reason of his decease, then it shall revert, in its entirety, toDeceased his sister, Mrs. Annie Muller (Miller), at present residing at No. 634 North 46th Street, at Philadelphia aforesaid or, failing her by reason of her decease, said legacy
*237Mrs. Elizabeth Ange — shall revert to her children, man the survivor or survivors of them."
Proponents of the will, appellees, are Elizabeth Miller Angemann, Harry Miller, Luke Miller, Joseph E. Miller, and Henrietta C. J. Miller, children of Annie Miller, deceased.
The disposition made of decedent's estate under the canceled incomplete will of 1939 was inconsistent with that of the subsisting will of 1906.
At the time testator signed his will of 1939 he remarked that he intended to make a new will, and in a subsequent letter to the witnesses of said will stated that he had already prepared some of the pages for the new will. There was not, however, any other subsequent will.
Jennie Burtt Wildrick appealed from the probate of the will of 1906. The hearing judge concluded (1) that the will of 1906 was impliedly revoked by the typewritten pages of 1939 because the disposition of property was totally inconsistent, and (2) that all the evidence clearly manifested an intention not to revive the will of 1906. A majority of the court en banc reversed the hearing judge and held, not as the majority opinion points out, "that because there was no express clause of revocation in the later will the earlier will was revived", but, that the will of 1906 had never been revoked and was, therefore, properly admitted to probate as the last will and testament of Thomas Burtt. This appeal followed.
The orphans' court was unanimous in holding that the will in question had probative value, and the majority opinion of this Court states that "we regard the writing, standing alone, as probatable . . ." In Seiter's Estate,
Confusion among the decisions regarding the effect of a subsequent will upon a prior will arises from conflicting rules enunciated by the ecclesiastical and the common law courts of England. The former held that revocation took effect upon the execution of the later will but that the earlier will might be revived if the evidence disclosed that the testator so intended: Ex parte Hellier, 3 ATK 798, 26 Eng. Rep. 1256 (1754). The latter held that all wills were ambulatory and were inoperative and of no effect until the death of the testator. *239 Cancellation of a subsequent will eliminated the canceled will as effectively as if it had never been written. It never had any operation.
Ecclesiastical courts had jurisdiction of a will of personal estate, and common law courts were concerned only with a will of real estate. See Flintham v. Bradford,
Examination of the statutes of the respective states removes from consideration many conflicting views upon the question of revocation. The statutes of 16 states specifically provide that there shall be no revival of a former will by reason of the destruction of the subsequent will unless, by the terms of the revoking instrument or republication of the former, it has been reinstated.2 By necessary implication, therefore, in these 16 states revocation must be considered as effective immediately upon the execution and publication of the subsequent *240
will. It is, therefore, clear that the rule of law in these states can have no application here.3 New Mexico statute provides that the former will must be acknowledged as valid:New Mexico, Wills, 32-109. The statutes of Nevada, Virginia, and West Virginia provide that there must be a re-execution of the former will: Nevada, Wills, Section 9913;4 Virginia, Wills, Title 46, Section 5234; West Virginia, Wills, Section 4046. These three statutes are practically identical with the English statute. See Clark v. Hugo,
There are, therefore, 27 states in which statutory provisions control the question here presented. Of the remaining 21 statutory enactments 16 have been construed, 7 according to the common law rule and 8 according to the ecclesiastical rule. Connecticut and Tennessee must be considered as supporting the common law rule, which will increase the number of courts adopting the common law and Pennsylvania rule to 9, and leave 8 adopting the ecclesiastical rule of construction. The holdings of the Massachusetts courts appear to be confused. The decisions of this Court place Pennsylvania in the group adopting the common law rule. Only by a strained interpretationand reliance upon unfortunate dictum in some of the cases hasthe majority opinion reached a contrary conclusion.
In Lawson v. Morrison, 2 Dallas 286 (1792), there was only one will in existence at the time of death and this Court held that the same was properly admitted to probate. The decision was based upon an alternative argument by Justice McKEAN: "the mere circumstance of making the Will of 1779, is not virtually a revocation of the former, the contents being unknown, and it not appearing to have been in esse at her death, but rather the contrary, and that she had cancelled or destroyed it. No other person was interested in its destruction, from anything I can discover, except the appellant, or his brothers, who were not in America; and charity will induce a presumption, that she herself destroyed it. If this is the fact, the first Willis not thereby revoked, as neither could be complete wills,until the death of the testatrix, and her destroying it had thesame effect as if it never existed, unless it had been clearly proved, that she did it *243 with an intention to die intestate. Should a contrary opinion hold, to wit, that the first Will was revoked, at theinstant the second was executed, yet the cancelling of the second by the Testatrix herself is a revival of the first, if undestroyed. Harwood v. Goodright, Cowp. 92." (Italics supplied).
This opinion further states: "Here is a goodsubsisting Will properly attested: There is no way to defeat it, but by proving it was revoked by another Will subsisting at the death of the Testatrix, or that she cancelled the later Will, so revoking all former ones, with a mind to die intestate." The word "subsisting" was stressed and it is apparent that the Court considered revocation by a subsequent will to be effective only if the later will was "subsisting" at the death of testator. In the instant case there is only one probatable and subsisting will. Admittedly, the will of 1939 had been destroyed by testator. Not until his death could either will take effect. The will of 1906 is the only "subsisting" will.
The case of Boudinot v. Bradford, 2 Dallas 266 (1796), while containing the statement by Justice McKEAN that "Where a second Will is cancelled, under circumstances that manifest an intention either to revive, or not to revive, the preceding Will, those circumstances must be proved", also contains the following explanatory statement: "The mere act of making a second testament, is a revocation of a preceding testament, inrelation to personal estate; the law throwing the personal estate on the executor as a trustee." This case is erroneously relied upon by the majority opinion for the reason that the distinction recognized by the courts in 1796 between wills of personal estate and wills of real estate no longer exists. That distinction has been removed by our Wills Act. Further, inFlintham v. Bradford, supra, 92, the Boudinot case was referred to as a case "sui generis, with strong peculiarity of facts." Chief Justice GIBSON, who beard the case at Nisi Prius, criticized the dictum in Boudinot v. Bradford and Lawsonv. *244 Morrison. Justice COULTER, speaking for this Court, in Flinthamv. Bradford, supra, 90, adopted the following language of Lord Mansfield in Goodright v. Glazier, supra: " 'A will . . . is ambulatory till the death of the testator. If 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' ". Kerchner's Estate,
In Shetter's Estate, supra, Harrison's Estate,
Ford's Estate, supra, does not support the majority opinion. There the clause of revocation contained in the later will which was subsequently revoked by tearing the signature from said later will was held to constitute an "other writing" within the Wills Act. The correctness of this conclusion need not be questioned here. Suffice it to say that the majority opinion in this case constitutes an unwarranted extension of a doubtful principle. The will of 1939 does not contain arevocatory clause. If it be effective to revoke a former willit is by reason of its existence as an "other will" within themeaning of the Wills Act, supra. Both in fact and law, however,it does not exist as an "other will." Testator intentionally destroyed all possibility of it ever becoming effective as such. The cancellation of the will by voiding his signaturethereon is no less a revocation than destruction by burning. If the revocation had been by *245 burning, Shetter's Estate, supra, would be applicable and no effect whatsoever could be given to its former existence. Therationale of the majority opinion, however, is that althoughlegally testator has destroyed said will, nevertheless, byvirtue of its physical existence it remains effective to defeattestator's only probatable and subsisting will. This, however,is not and should not be the law in Pennsylvania.
The majority opinion is in error in concluding that the paper with the canceled signature, not provable as a will must be proved, may, nevertheless, be admitted in evidence and be effective to revoke a valid subsisting will although the WillsAct requires the same proof in both instances. Cf. Rudy v.Ulrich,
McClure's Estate,
That the unsigned notations "Invalid" and "N. G." and others do not of themselves void the will must be conceded:Williams' Estate,
Manning's Estate,
The majority opinion refers to the doctrine of stare decisis and points out that Ford's Estate, supra, has been followed in three cases, Shetter's Estate, supra, Harrison's Estate, supra, and Koehler's Estate, supra. All of those cases, however, citedFord's Estate in support of the principle that there cannot be revocation by parol. In Shetter's Estate, supra, 197, this Court said: "A writing declaring its revocation must be produced, signed by the decedent, before an earlier will can be rendered nugatory." Harrison's Estate, supra, held that a subsisting probatable will could not be revoked by one purported to have been written subsequent thereto but which was not produced or proved. Koehler's Estate, supra, was of similar import. Stare decisis would require that in this case we should hold, as did the court below, that there can be no oral or parol revocation.
There is no long line of decisions supporting the rule laid down by the majority opinion. In fact, the majority opinion is a departure from the rule laid down in Lawson v. Morrison, supra, Boudinot v. Bradford, supra, and Flintham v. Bradford, supra, in which the issue now before this Court was considered. Again, stare decisis would prevent the enunciation of the rule now laid down by the majority opinion. Ford's Estate, supra, decided in 1930, is not decisive of the basic issue in this case. If it were, however, this Court need not regard itself bound by stare decisis. During the fifteen years since that opinion was adopted the rule therein *248 laid down regarding revocation of wills has not been applied to a single case. That the rule of stare decisis is a salutary one does not admit of argument. It does not, however, require perpetuation of an erroneous interpretation of statutory law.
Whether a distinction exists between revocation effected by a will containing a revocatory clause and one wherein the disposition of property is inconsistent with a former will need not now be passed upon.
To adopt the majority opinion would introduce into the laws of wills in this Commonwealth a most undesirable principle. Instead of establishing a rule of law by which may be determined the validity or invalidity of a valid and subsisting will, there will result a most impractical and vacillating rule. A testator will have no assurance that — as in this case — his intended disposition of property will be valid and effective. The evils which Mr. Justice SCHAFFER, in Harrison'sEstate, supra, depicted as the probable result of permitting the contents of a destroyed instrument to be proven, will be multiplied. The door will be opened to the admission of parol evidence of "intention" and to all devious and sundry methods of perpetrating fraud and, therefore, the protection of the provision in the Wills Act for revocation in the manner therein provided would be rendered nugatory.
The decree of the court below should be affirmed for the reason that the will of 1906 has never been revoked in accordance with the requirements of the Wills Act.
"No will in writing, concerning any personal estate, shall be repealed, nor shall any bequest or direction therein be altered, otherwise than as hereinbefore provided in the case of real estate, except by a nuncupative will made under the circumstances set forth in section four of this act, and also committed to writing in the lifetime of the testator, and, after the writing thereof, read to or by him and allowed by him, and proved to be so done by two or more witnesses": Act of 1917, P. L. 403, Section 20(b).