Eschbach v. Collins, 61 Md. 478

Eschbach v. Collins

61 Md. 478 | Md. | 1884

Lead Opinion

Yellott, J.,

delivered the opinion of the Court.

The bill of complaint in this cause invokes a judicial construction of the will of John Eschbach, the meaning of which having been rendered ambiguous, obscure, and, in some places, apparently incomprehensible by obliterations made by the testator a number of years subsequent to the date of its execution. The will was originally executed in conformity with the requirements of the statute prescribing the formalities to be observed in making a testamentary disposition of real estate. In the first clause, two of the testator’s sons, Leo Eschbach and John E. Eschbach, are appointed executors, with the usual directions in regard to funeral expenses and the payment of debts. In the second clause the whole estate, real and personal, is devised and bequeathed to the said Leo and JohnE. Eschbach in trust. The testator then proceeds to declare the nature and purposes of the trust thus created, and the mode and manner in which it shall be executed, with a multitude of provisions not necessary to be here recited, as they involve no questions now presented for adjudication. The corpus of the estate is to be divided into ten equal parts corresponding to the number of the testator’s children. Leo Eschbach and John E. Eschbach are, each, to take one-tenth, entirely exempted from the operation of the trust, and to be held by them absolutely, or in fee simple. To the other sons, and the daughters, life estates are given with remainders as prescribed by the terms of the will. It becomes important, in the construction of this will, to observe that none of the children of the testator are mentioned by name except Leo and John E. Eschbach. The others are simply designated as sons or daughters.

*494After the death of the testator the will was discovered with certain, words written below the signatures of the attesting witnesses. This writing is somewhat deficient in perspicuity, which is, perhaps, attributable less to the general imperfection of human language than to the peculiarity of the diction employed. It was not there when the will was executed. It has no attestation, hut is supposed to be in the hand-writing of the testator and was signed by him. It is in these words :

February 3, '80.

For Good & sown Reason, I arrest John E. Eschbach Name, and Leo Eschbach his Name, the above date, in Good Health and Reason. Signed the above date.

John Eschbach.

In each clause of the will, wherever the names of Leo Eschbach and John E. Eschhach occur,, a pen has been drawn across, leaving the names legible but the writing partially defaced by the attempted obliterations.

Two important changes in the will result from these erasures. The first is the removal of Leo and John E. Eschbach as executors and trustees. No question here arises for the determination of this Court; the said Leo and John E. having declined to act as executors, and their formal renunciation being embodied in the record. The Circuit Court has also, in the exercise of its jurisdiction, and in conformity with the provisions of the will, appointed trustees, and Leo and John E. Eschbach have admitted and averred in their answer that said trustees have been duly appointed. But another and more material change has been effected by these erasures. The will, as originally Executed, gave life estates to all the sons except Leo and John E. Eschbach. The erasure of the two names operates to confer estates in fee simple on all the sons. The testator says, in the second clause, “ the shares of my sons Leo and John E. Eschbach to be held *495by each of them, who may survive me, absolutely, and the trust hereby created to cease as respects them, or the one who may survive me. The shares of my other children to be held for their respective lives,” &c., &c. The testator had other sons besides the two specially mentioned by name. Omit the words erased and it will be seen, at a glance, that all the sons take absolutely, and the words “ my other children ” apply only to the daughters. Again in the concluding portion of this clause the testator says,

“ it being also my intention to pass life estates to all my children and descendants of a deceased child, who may take at the time of my death, with the exception that my sons, Leo Eschbach and John E. Eschbach, shall each, if he. survives me, take absolute fee simple estates in their respective shares.” He has erased the names of Leo Eschbach and John E. Eschbach, and this obliteration manifestly creates a fee simple estate in each son, and renders the word “children” applicable only to the daughters.

The first question presented for adjudication is whether a testator can, by the obliteration of certain words in his will, cause the transmutation of a life estate into a fee simple. This is the converse of the proposition presented by the case of Swinton vs. Bailey, 1 Exch. D., 112. There the effect of the obliteration was to dimmish an estate in fee simple and convert it into an estate for life. Chief Baron "Kelly in the Exchequer held that this could not he done. The judgment of the Exchequer was reversed in the Court of Appeals, Cookbubh, Ch. J., saying: “Although it is a devise in fee simple, I think that is (so far as it is matter of revocation) divisible into two parts, and that the man who has given the larger estate may revoke the gift to that extent, and cut it down to the smaller gift or devise of an estate for life. It may be that you cannot add to the will.” The decision of the Court of Appeals was affirmed in House of Lords, 48 L. J., 57. *496'The only principle determined in this case was that an ¡•estate might he diminished by the erasure of certain i words, and any general observations, made by Judges, which extended beyond the scope of the question in controversy, could hardly be recognized as establishing a safe precedent even within the jurisdiction where the decisions of that Court must be received as authoritative.

In Larkins, et al. vs. Larkins, et al., 3 Bos. & Pull., 20, Lord Alvanley, Ch. J., said: “If the remaining devisees were to acquire any estate which they had not before, something beyond a mere revocation ivould be necessary.”

A careful analysis of either of the English or the Maryland Statute would seem to lead irresistibly to the conclusion that every testamentary act by which property is transmitted should be authenticated in the manner prescribed by the Legislature. A man may devise the whole ■of his estate in fee simple. This is one testamentary act. He may subsequently change his intention, and, as the fee is susceptible of subdivision, he may determine to give a less estate. This would certainly be another and •a distinct testamentary disposition, and when it is alleged that he has so determined, the adduction of the proper proof is requisite. It is apparent that this proof must be supplied by the production of another will or a codicil properly attested and executed. Hence, it would seem to have formerly been the settled doctrine in England, that “any alteration that amounts to a new devise of the land, requires that the will should be re-executed according to the Statute.” Lovelass on Wills, 349.

The American cases fully recognize this doctrine, and when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt has been held to be abortive, and the will operated as originally executed. In Jackson vs. Holloway, 7 John., (N. Y.,) 395, a testator having made his will, devising his lands then in possession to his four sons, sub*497sequently acquired other lands which, by the statutes of the State, did not pass by a will executed antecedently to the seisin. He attempted an alteration by erasures and interlineations so as to make the devise extend to all the lands of which he should die seised; and endorsed a memorandum to that effect on the will, stating the alterations which he had made. This memorandum was attested by two witnesses only. It was held that the erasures and interlineations did not destroy the original devise, but that the alterations, not having been attested by three witnesses could not operate. The Court said: “ The obliterations in the will were made, not with an intent to destroy the devise already made, but to enlarge it, by extending it to lands subsequently acquired. The testator, however, failed in making interlineations and corrections which could operate, from not having the amendments attested according to law. The obliterations cannot therefore destroy the previous devise, for that was not the testator’s intention.”

In McPherson vs. Clark, 3 Bradf., 99, the testator attempted to revoke the devise to his daughter by striking out the words “my children” and inserting “my two sons.” The Court said: “ This insertion is inoperative for want of re-execution and attestation; and the intent failing as to the substitution intended, it must fail likewise as to the revocation intended. Enough remains on the face of the will to show that the word erased was ‘ children,’ and the will must be so recorded.”

In the case of Wolf vs. Bollinger, 62 Ill., 372, the testator having devised his estate to one person afterwards attempted to transfer it to another. The alteration was made by an interlineation which was not attested in the presence of the testator. The Court said that “for want of a compliance with this statutory requirement, the instrument did not operate as a disposing will. The cancellation was not made with intent to revoke the devise to *498the complainant, simply, hut with intent to substitute in, her stead the defendant; and the ultimate object of substitution having failed of accomplishment, the cancelling, which was done only in the view of, and in order to effect that object, should be esteemed for nothing, and be considered as not having been made absolutely, but only conditionally, upon the attempted substitution being made effectual. To give it effect under the circumstances, would seem to be to thwart the intention of the testator, and make him intestate when he manifested a contrary intent by his will.”

In the case of Bigelow vs. Gillott, 128 Mass., 102, there' was an entire obliteration of the sixth and thirteenth clauses of the will by ink lines drawn through and across every word constituting those clauses. This was held to be a revocation of these two clauses; leaving intact the other clauses in the will. The Court said: “ He revoked the sixth and thirteenth clauses, and purposely and intelligently left the other provisions^ to stand as his will.” “ The argument, that this view is in conflict with the provisions of law which require that a will disposing of property should be executed in the presence of three witnesses, is not sound. It is true that the act of revocation need not be done in the presence of witnesses; but such act does not dispose of the property.”

If this was simply a question of revocation its determination would involve a construction of sec. 302, of Art. 93, of the Maryland Code of General Laws, which prescribes the mode by which a revocation may be effected. The language of the statute is, “No devise in writing of lands, tenements, or hereditaments, or any clause thereof, shall be revocable ” except in the manner designated. An entire will can thus be revoked, or any clause thereof.. What then is a clause? Does it consist of two or three words which, disjoined from the context and transferred to a separate sheet of paper would be devoid of sense or *499meaning? Do the mere names of two persons constitute a clause ? Is not a clause always understood to mean one of the subdivisions of a written or printed document? Is the word ever used in any other sense ? Wills are frequently subdivided into a number of clauses. In one, the testator may provide for the payment of debts; in another, dispose of his personal property; in a third, devise his real estate; in a fourth, leave legacies; and then there may be a residuary clause. Is it not apparent that the statute has reference to one of these subdivisions of a will when the word clause is used in connection with revocation? It is true that a whole will might be revoked, or any clause thereof, by obliterating all the words necessary to give it meaning-. To deprive a will of all meaning would be as efiéciíml a revocation as if it had been consumed to ashen

It is manifest that in the construction of this will a question is encountered which involves something more than mere revocation. The will has not been revoked; it has been altered. II cannot be supposed that when the Legislature uses the word “revocation” it is to be construed to mean mutation. Revocation is certainly not a synonym of alteration. To revoke a testamentary disposition plainly means to annul it; and the revocation of a clause implies the destruction of that clause. In legal contemplation it ceases to exist, and is as inoperative as if it had never been written. It is not necessary that the words erased should be wholly illegible, but the act of the testator must be such as to clearly indicate an intention to expunge the whole clause, so that it shall no longer constitute a subdivision of the will. But when by the obliteration of certain words a different meaning is imparted, there is not a mere revocation. There is something more than the destruction of that which has been antecedently done. There is a transmutation by which a new clause is created. There is another and a *500distinct testamentary disposition which, must he authenticated hy the observance of the statutory requirements. The statute after designating the modes of revocation, whereby that, which has already been done, is rendered inoperative hy being destroyed, says in language wholly free from ambiguity, and therefore needing no construction: “or unless the same he altered hy some other will or codicil in writing, or other writing, signed in the presence of three or four witnesses declaring the same.”

There can therefore he no alteration in a testamentary disposition of real estate except hy an observance of the formalities prescribed hy the statute. In the will now to he construed the obliterations, so far from operating as a mere revocation, by destroying the sense of the context, impart to the clause a different and more important significance. Not only does this become apparent, hut it is also evident that the construction, which has been contended for, would be productive of the very evils which the Legislature intended to provide against. The obliteration of two or three words might wholly change the character of a devise. As aptly illustrated by learned counsel in argument, if the words were “ to my son William I give nothing, and give all my estate to my son John,” the will could he made to read, without the insertion of any additional words, “ to my son William I give all my estate.”

But, as already intimated, this record does not present a question of revocation. It is clear that the testator did not contemplate an intestacy. He evidently intended to make a testamentary disposition of the whole of his property. It was supposed by the learned Judge of the Circuit Court that he intended hy the obliterations to diminish the fee simple estates of Leo and John E. Eschbach to life estates. If such was his purpose he has attempted to make another and a different devise of one-fifth of his whole property. He transfers the legal title, *501Tested in Leo and John E. Eschbach, to trustees, and carves out of the fee simple equitable life estates with remainders to the children of the life tenants. This is a new will as respects the disposition of the one-fifth of his property. Let it be supposed, by way of illustration, that the entire estate had been devised to Leo in fee simple. How could the testator subsequently vest the legal title in trustees, and -create an equitable life estate with remainders? Kbt certainly by obliterations and interlineations, without attestation or the observance of any of the formalities prescribed by the statute. And is a testamentary disposition of the one-fifth of an estate governed by a different principle ? The intention of a testator is only to be regarded when the law sanctions the means which he has adopted to carry it into effect. If what he has done is invalid the intent cannot be respected.

In the formation of a judicial opinion the calm investigating faculty of reason should exercise a paramount control; but, in an effort to ascertain, by an inspection of this mutilated will, the real intention of the testator, the aid of imagination seems to become necessary. The aged testator declined to seek the advice and assistance of those whose professional learning and experience would have afforded sale guidance, and, relying solely upon his own judgment, failed in the accomplishment of an intent which he has left involved in obscurity.

The true construction of this will is, that the attempted obliterations are inoperative, and that the will must be read just as it was originally written and executed. The renunciation of Leo and John E. Eschbach as executors, and the appointment of the complainants as trustees, by the order of 2lth of September, 1881, from which no appeal has been taken, render a construction of the first clause of the will unnecessary. The trustees, appointed in conformity with a provision in the second clause and by a competent Court having jurisdiction of trusts, have the *502control over the estate given to the trustees by the will as it was executed. The shares of Leo and John E. Eschhach are exempted from the operations of the trust thus created, and are to he held by them absolutely and in fee simple. The learned Judge of the Circuit Court, having sought to give effect to the' supposed intention of the testator to diminish the estates of Leo and John E. Eschbach, his decree is, in this respect, erroneous. But no other error is perceptible in said decree, which must therefore he affirmed in part and reversed in part.

(Decided 26th March, 1884.)

Decree affirmed in part, and reversed in part, and cause remanded.

Eobinson, J., dissented.

Concurrence Opinion

Alvey, C. J.,

filed the following concurring opinion:

While I concur in the conclusion arrived at by the opinion of the Court in this case, I do not concur in the reasoning upon which that conclusion is based. I shall therefore state briefly my views of the case.

That the testator intended to effect a change in the disposition of his estate by the erasures or obliterations made in his will, cannot admit of a doubt. The only question is, whether such obliterations can be allowed to have the effect of revocation under the statute.

Section 302, of Art. 93 of the Code, was literally transcribed from section 6 of the Statute of Frauds (29 Car. II, c. 3); and by that section it is declared that “Ho devise in writing of lands, &c., or any clause thereof, shall he revocable otherwise than by some other will or codicil in writing, or other writing declaring the 'same, or burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his direction and consent.” By the express terms of the statute, therefore, the testator *503was at liberty to revoke any devise or any clause thereof contained in his will, by simply cancelling or obliterating the same, without the ceremony of republication. And it is not disputed that the obliterations that appear in the will were made by the testator himself.

The testator left ten children; seven sons and three •daughters. By his will he appointed his two sons, John E. and Leo, his executors and trustees. He directed that his estate be divided into ten equal parts or shares, and he gave to all his children life estates in their respective shares, with remainders over to their children, except his two sons John E. and Leo, to whom he gave their respective shares absolutely and in fee. Some time after making the will, the testator, for some reason not apparent, erased or obliterated the names of his sons John and Leo where-ever they occurred in the will; and the will in that form was admitted to probate. According to the rational effect produced by the erasures upon the context of the will, the exception made in favor of his two sons would be revoked, and their fee simple estates reduced to life estates, as in the case of his other children. The clauses in the will making the exception in favor of his two sons being in their nature separate and distinct, should, if the revocation pro tanto were effectual, be regarded as entirely expunged from the will, and none of the terms employed in making the exception should be applied to the sons generally of the testator; for that would plainly contravene the whole scheme of the will, and defeat the manifest intent of the testator. In other words, the will should be read as if the exception in favor of the two sons had never been incorporated in it.

How, with respect to the competency of the testator to make revocation of a devise by the simple erasure or ob-jj literation of the name of the devisee, I can entertain no! doubt whatever. Hor can I entertain a doubt of the competency of the testator to revoke pro tanto by simply re-j *504ducing a larger to a smaller estate, when the act of revocation consists simply in erasing or obliterating the name of ijithe devisee, or the terms by which the larger estate is given. But in all such cases we must h*ave regard to the effect of such revocation upon the rights of other persons, who may claim under the will. If the effect of such revocation is to enlarge the estate or interests of other devisees, or to raise new interests or rights under the will,. then it is not simply a revocation, hut a new devise, which can only he made byre-execution and re-publication of the will. This I take to he well established upon authority.

In the case of Larkins vs. Larkins, 3 B. & Pul., 16, a case arising upon the 6th section of the Statute of Frauds, the testator made a devise of land, in due form to three persons as joint tenants in fee, and afterwards struck out the name of one of the devisees, without re-execution and re-publication of the will; and it was held, that the erasure would operate as a revocation of the will protanto. Lord Alvanlby, C. J., said: “ Whatever this alteration he, it is not an alteration arising from a new gift, hut merely from a revocation. If the remaining devisees were to acquire any estate which they had not before, something, beyond a mere revocation would he necessary. If therefore the devisees had been tenants in common, upon the erasure of one name the remaining two would take no more than two-thirds of the estate.” The same principle was conceded in the case of Short vs. Smith, 4 East, 419.

Then we have the recent case of Swinton vs. Bailey, 1 Ex. Div., 120, on appeal, and 4 App. Cas. (H. L.,) 70, where the question underwent most thorough consideration. In that case, a testator, by his will duly executed and attested, devised realty to his mother, “Elizabeth Eley, her heirs and assigns forever.” Some time after the execution of the will, the testator drew his pen through the words “ Eley, her heirs and assigns forever,” and then wrote the word “Eley” above the words erased. *505And on the question whether the obliteration cut down the devise from an estate in fee to an estate for life, as being a revocation of a devise, or of a clause thereof,, within section 6 of the Statute of Frauds, it was held, (reversing the judgment of the Exchequer Division,) that such erasure or obliteration was a revocation of a clause of a devise, within the Statute, and that the mother took an estate for life only. The judgment of the Court of the Exchequer Division proceeded upon the ground exclusively that the words erased did not constitute a clause of a devise, within the meaning of the Statute. But the Court of Appeal did not concur in that view, and reversed the judgment. The latter Court held that the word “clause” as employed in the 6th section of the Statute means nothing more than “part,” and that the words, erased constituted a clause within the section; and the devise being one in fee simple it was divisible into two parts, and that being so, it was competent to the testator who gave tlie^larger estate, to revoke by erasure the gift to the extent of cutting it down to a devise of an estate for life. Cockbubn, C. J., in delivering his opinion in the Court of Appeal, said: “How I quite agree that you cannot by merely striking out words alter a will so as to enlarge the estate of some one who takes under the will, or so as to have the effect of granting a new estate to some one. But when the purpose is simply to revoke and undo something which has been done, and when the effect of striking out certain words is to revoke what has been given, and no more, it does not seem to me to be brought at all within the mischief contemplated by the Act, or to be inconsistent with the terms of the section.” The other Judges expressed substantially the same view. The case was taken by appeal to the House of Lords, where the judgment of the Court of Appeal was affirmed without dissent, and for very much the same reasons that had been assigned for the judgment in the Court of Appeal. 4 App. Cas., 70.

*506Now, taking the principle of the case' just cited to he •established, and that the effect of the obliterations in the will in this case would be to reduce the estates given to ■the two sons from fee simple to life estates, the question is, will such revocation, if allowed, have the further effect to give new estates to other persons, or to enlarge the •estates of other devisees in the will? As we have seen, the devises to the two sons being of fee simple estates, the revocation of those devises, and the treating the exceptions in favor of those two sons as if they had never been incorporated into the will, place those two sons in the class with all the other children, who take but life •estates, with remainders to their children, and in default of children or descendants, over to other devisees under the will. Such revocation, therefore, if allowed to have effect, would not only cut down the greater to less estates, .so far as the two sons are concerned, but would have the further effect to give new estates to other narties, .or to enlarge the estates of other devisees; and tnat being the •case, the attempted revocation pro tanto cannot be allowed to take effect. The will must therefore be read as if the obliterations had never been made. And consequently, John E. and Leo take absolute estates in fee under their father’s will.

Judges Miller and Irving authorize me to say that they concur in these views.