Card v. Grinman

5 Conn. 164 | Conn. | 1823

Hosmer, Ch. J.

John Grinman made his last will and testameat, which was proved, and approved, by the probate court. From the decree of probate, the heirs at law appealed, and among other things, assigned as the reasons of their appeal, that the said Grinman revoked the will in question, having declared that it was not his will, and directed it to be destroyed; that it was, against the mind of Grinman, fraudulently procured, by the influence of the devisees; and taken out of his possession by them, and preserved, with a view to its future establishment; and he induced to believe, that the destruction of it, had been effected. These facts being traversed, on the trial of the cause, the appellants offered parol testimony to prove them; and the court held such evidence to be inadmissible.

The allegation of the appellants, relative to the fraudulent procurement of the will, is so defective, that i shall pass it by without observation. With respect to the other averments, they undoubtedly were proveable by parol testimony.

In the first place, the testator, by parol, revoked his will; and a parol revocation, as the law then existed, was effectual. Devises of lands by virtue of the statute of wills, might have been revoked, by words only, without writing; “ the statute of wills giving power to any person seised in fee of lands to devise them in writing, but being silent as to revocations.” 6 Cruise’s Dig. 79. tit. 38. c. 6. s. 2. Pow. Dev. 533. This was, precisely and literally, the condition of our law, when the words of revocation were pronounced; and the legal consequences must be the same. In Witter & ux. v. Mott, 2 Conn. Rep. 67. it was adjudged, by this Court, that the will of Samuel Molt, was revoked, by an unwitnessed and unsealed writing, on the back of it, signed by the testator, and declaring it to be invalid. This determination shows decisively, that the maxim dissolvitur eo ligamine quo ligatur, was not applicable to a devise; and unquestionably for the reason before assigned, because the statute was silent on this subject. In assigning the reasons, Ch. J. Swift observed, “ it is not necessary that the revocation of a will, should be attested by three witnesses; it is sufficient to be in writing but the latter expression must have been his individual opinion, and could not have been the opinion of the Court. Between a writing unwitnessed and unsealed, and a declaration proved by parol, there is no essential difference, neither of them being specialties, but both evidences precisely of the same grade. A statute may make, and it is well known has made, a diversity, between parol testimony and written; but, at common law, there is no such discrimination between them. The decisions of the English courts under the statute of wills, giving validity to parol revocations of devises, in writing, were remedied by the sixth section of the statute of frauds; and, by a recent statute in our own state, (Stat, 200. tit. 32 c. 1. s. 6.) in order to redress the same inconvenience, a similar remedy has been resorted to. Undoubtedly, by an assumption of legislative power, this Court can promulge as law, any provision, which will meet a particular mischief; but with a very eminent judge, I take pleasure in declaring, “It is my wish and my comfort to stand super antiguas vias: I cannot legislate; but by my industry, I can discover what our predecessors have done, and I will servilely tread in their footsteps.'’ Bauerman & al. v. Radenius, 7 Term Rep. 664. The English common law, so far as it was not unadapted to the local circumstances of this country, our ancestors, on their emigration hither, brought with them; and until it is abrogated, by statute, I must, with the exception mentioned, consider it as the common law of this state. I deprecate a departure from the old highway of the common law, by the indulgence of a disposition to decide on principles of equity and convenience, which often are notional and imaginary.

The delivery of the will, by Grinman, to the devisees, directing it to be destroyed, and which, as he was made to believe, was actually destroyed, but in fact was fraudulently preserved by them, undoubtedly was proveable by parol testimony. It could be proved in no other manner; and I can imagine no objection, of any possible force, to the admission of the evidence offered. Every act of a testator, by which he shows his intention to cancel a will, though the will be not actually cancelled, operates as a revocation. 6 Cruise’s Dig. 94. § 28.

In Bibb v. Thomas, 2 Black. Rep. 1043. a testator gave his will a rip, with his hand, and so tore it, as nearly to tear out a bit, then rumpled it together, and threw it on the fire, but it fell off. It was taken up, by one Mary Wilson, put in her pocket, and preserved. This was deemed a revocation of the will.—The act clearly indicating the animus revocandi, was considered as having the same operation, as if the devise had literally undergone a destruction, Pow. Dev. 633.

The case before us, essentially, is not distinguishable from the one to which I have referred. Superadded to this, is, the fraud of the devisees, which invalidated their acts; and it would be in contravention of the known and established principles on this subject, to give validity to a transaction, which, most unquestionably, is void.

I conclude, then, that the will of the testator was revoked, and only has a visible existence, through the fraud of the devisees; and that parol testimony was legally sufficient, for the establishment of these facts.

Chapman and Brainard, Js. were of the same opinion. Peters and Bristol, Js. thought, that our law had always required something more than a parol declaration, to revoke a written will; but they concurred in the opinion, that there must be a new trial, on account of the rejection of the evidence adduced to prove the fraudulent conduct of the devisees in relation to the will.

New trial to be granted.