Hairston v. Hairston

| Miss. | Dec 15, 1855

Smith, C. J.,

delivered the opinion of the court.

This is a writ of error to a decree of the Court of Probate, of Lowndes county, admitting to probate a paper, purporting to be the last will and testament of Robert Hairston, deceased, dated the 7th of March, 1852.

The plaintiffs in error filed their petition in said court, in which they allege that Robert Hairston, deceased, on the 22nd of September, 1841, made his last will and testament,- by which he devised to Robert Hairston, the son of Samuel Hairston, the whole of his estate, with the exception of a plantation and stock devised to George Hairston, the son of Robert Hairston, a plantation left to Robert Hairston, the son of Hardin Hairston, and a legacy of five thousand dollars, bequeathed to the said Robert, the son of George Hairston. That, on the 6th of March, 1852, the testator, being then incompetent to make a will, was induced to execute a paper, purporting to be a will, by which he devised to a negro girl, one of his slaves — having previously directed her to be manumitted — his whole property, with the exception of a landing on the Tombigbee river, his lands on the west side of the same, and a few slaves; and that the said testator, being still incompetent to make a testamentary disposition of his property, on the 7th day of March, 1852, was induced to execute another instrument, purporting likewise to be his last will and testament, in the following words, to wit:—

“ This being my last will and testament, which revokes all other testaments by me made

“ 1st Item. — I will my body to its mother earth, and to be decently buried; and my soul to my Father, Almighty God.

“ 2nd Item. — I will Chrimhiel to be made free, according to the laws of Mississippi.

“ 3rd Item. — It is my will that she, the said Chrimhiel, possess all my estate, both real and personal, to me belonging.

“ In witness whereof, I hereunto set my hand and seal.

“ ROBERT HAIRSTON, [SEAL.]”

That this, with the will of the 6th of March, 1852, was made, not only when the testator was of an unsound mind, but under a mistaken belief that the slave Chrimhiel was legally capable of taking the estate bequeathed to her; that Chrimhiel died in August, 1852; and that the testator never intended to revoke the will of September, 1841, except on condition, and under the belief, that Chrimhiel could inherit his estate.

That the testator died within a few hours after having executed the last will, which, with the will made on the day previous, and that of September, 1841, was presented to the Court of Probate at the April term, 1852, and declared to be the last will and testament of the testator, and so far valid as to revoke all former wills; and that letters of administration, with the will annexed, were granted to George Hairston, one of the defendants in error. The petitioners prayed that certain issues might be made up and sent to the Circuit Court, to be tried according to law.

The several answers of the defendants to the petition, are substantially the same. They admit that the testator, about the 22nd of September, 1841, executed an holographic will in duplicate, one copy of which was sent to his brother, Samuel Hairston, of Virginia, and the other to Hardin Hairston, his brother, in Mississippi, with a direction upon the envelopes, that they were not to be opened until it was known that he had died; but the defendants were not informed that he had ever legally published the same.

They admit- the execution of the will of the 6th of March, 1852, and insist that it was valid at the time of its operation, and that it amounted to a revocation of the former will. They admit the execution of the will of the 7th of March, 1852; and insist that it was valid, and revoked all former wills. And they deny all the allegations of the petitioners, tending to show fraud in the procurement of its execution, or want of capacity or reflection in the testator, or that it was only his intention to revoke the will of the 22d of September, 1841, in the event or upon condition, that his bequest in favor of the negro girl Chrimhiel, could be carried into effect.

Upon the hearing of the cause in the Court of Probate, it was ordered and decreed that the following issue, to wit: “First, whether Robert Hairston, late of said county, deceased, was, on the Tth day of March last, 1852, at the time of the execution of the will of that date, mentioned in the said bill, of sound and disposing mind: second, whether the paper writing purporting to be the last will and testament of the said Robert Hairston, deceased, be the last will and testament of the said Robert or not?” — be made up and certified to the Circuit Court of said county, to be therein tried by a jury. The same issue was made up and certified to the Circuit Court, to be tried in reference to the wills executed on the 22nd of September, 1841, and the 6th of March, 1852.

The issue in reference to each of the said wills was tried by the jury, who returned their verdict in the following words:— “We the jury find, that the testator was of sound and disposing mind, at the time of making and executing the will of 1841; and also at the time of making and executing the wills of the 6th and 7th of March, 1852, and that said wills are executed and attested according to law.”

The verdict having been certified to the Court of Probate, the complainants moved for a new trial; first, because the verdict was not responsive to the issues; and, second, because it does not find whether the said paper writing, purporting to be the last will and testament of Robert Hairston, deceased, be the last will and testament of the said Robert or not. The motion for a new trial was overruled, and the court, declaring its satisfaction with the finding of the jury, affirmed the probate of the will of the. 7th of March,-Í852, and dismissed the bill.

It is now insisted that this decree is erroneous, and should be reversed. The very learned and lucid arguments of counsel, upon the questions connected with this proposition, have materially aided us in arriving at a satisfactory conclusion.

It is manifest that the principal questions involved in the cause, must depend mainly upon the construction which should be given to the first clause of the fifteenth section of the act, concerning last wills and testaments, &c., Hutch. Dig. 649, which 'declares that “ no devise so made, or any clause thereof shall be revocable, but by the testator or testatrix destroying, cancelling or obliterating the same, or causing it to be done in his or her presence, or by a subsequent will, codicil, or declaration in writing made as aforesaid.” That is, a will or codicil or declaration, to be effective, for the purpose of revoking a former will or any clause thereof, must be executed with the same formalities which are required in the execution of a will.

It is admitted that the testator’s will, made on the 7th'of March, 1852, the probate of which was confirmed by the decree in this cause, was executed with all the formalities required by the statute. It contains an express clause of revocation; and a wholly different disposition of his estate is made from that directed in the will of 1841.

Notwithstanding the plain and unambiguous language of the act, counsel contend that the latter will-does not in law operate as a revocation of the former. Because, say they, — that will having failed as a testamentary act, by reason of the incapacity of the devisee to take, it ought not to operate as a revocation, as it is clear that the intention to revoke, or the act of revocation, was only intended to be subservient to the new disposition of his estate.

That in cases of this character the testator, by the execution of his will, has made a complete disposition of his property; and has thus clearly manifested an intention not to die intestate. By the execution of another will, he manifests a like intention. If therefore the latter, for some reason dehors the instrument, should fail in its purpose, but should nevertheless be held to revoke the prior will, the testator would thus be compelled to die intestate, against his manifest intention. Hence the above conclusion.

In cases like the one at bar, in which the will contains an express clause of revocation, and upon the face of it there is nothing from which it could be inferred that the testator intended only to revoke conditionally, and in subserviency to some other purpose; if the mere fact, that the bequests in the will, not from any defect in its structure or attestation, but from some extraneous circumstance, have failed, could authorize the presumption of a conditional or dependent revocation, — an unequivocal clause of revocation in a will duly attested would stand precisely on the same footing with an act of destruction, cancellation, or obliteration, which are equivocal in their very nature, — amount to but primd facie evidence of an intent to revoke, and depend exclusively for their efficacy upon the quo animo with which they are performed. Lomax, Ex’ors, 42.

It will not be denied, that a declaration made and attested in the mode prescribed by the statute for the execution of wills, the object of which was the revocation of a prior will, would be conclusive of such intention. And, therefore, in any controversy which might arise, in reference to the efficacy of the instrument as an act of revocation, it would be incompetent to introduce evidence to prove that the declaration was not designed to operate as an absolute, but only as a conditional revocation, relative to, and dependent upon the happening of some event. Hence it is difficult to conceive, upon what principle a clause of revocation, unequivocal and unconditional, in a will duly attested, would be less conclusive as to the intention to revoke, or less efficacious for that purpose, because the devises have failed, in consequence of the incapacity of the devisees to take. The power to revoke any disposition of his estate, made by will, is expressly given by law to the testator: but any act of revocation, to be efficacious, must be performed in some one of the modes prescribed in the statute; in each of which, the intention to revoke — the essential ingredient in an act of this character — must be clear and unequivocal, and manifested in the precise manner directed in the act. A will, executed with all the requisite formalities, and containing an express clause of revocation, although from some cause dehors the instrument, it may be inoperative as a testamentary act, unquestionably fulfils every requisition of the statute, whether it be regarded as a will, or as a declaration in writing designed simply as a revocation.

An instrument propounded as a revocation, if it be in form a will, must be perfect as sucb, and be subscribed and attested as required by tbe statute. Hence, an instrument intended to be a will, but failing of its effect as sucb, on account of some imperfection in its structure, or for want of due execution, cannot be set up for tbe purpose of revoking a former will. This principle is well settled by many decisions in tbe English courts of law and equity; and those decisions have been followed in some of tbe states of this confederacy, whose statutes concerning wills are similar to tbe English statutes on tbe same subject. Eccleston v. Speelce, Carth. 79; Simbrey v. Mason Hyde, Comyns, 451; Onions v. Tyrer, 2 Vern. 742; Ex parte Earl of Ilchester, 7 Ves. jr. 348; 1 Pick. 535; 2 Brev. 290; Barksdale v. Barksdale, 12 Leigh, R. 541.

There is a material difference between tbe devising and revoking clauses contained in tbe fifth and sixth sections, chapter third of tbe statute 29 Oar. 2. By tbe former, it was made essential to tbe validity of a will, that it should be attested by tbe witnesses in tbe presence of tbe testator, which was not required in revoking. By tbe latter, it was necessary that an instrument designed as a simple act of revocation should be subscribed by tbe party executing it in tbe presence of tbe attending witnesses, which was not requisite in the attestation of a will. This essential difference in tbe provisions of tbe statute in reference to tbe execution and revocation of wills, has probably led to tbe recognition of tbe rule above stated.

It is manifest, that sucb a doctrine cannot legitimately be based upon our statute. Eor no will, under its provisions, can be valid as a testamentary act, which was not subscribed and attested in tbe mode required in tbe execution of a declaration intended as a simple act of revocation: and no declaration designed for tbe purpose of revocation, can be efficacious for that purpose unless executed with all tbe formalities required in tbe execution of a will.

But if this doctrine of tbe English courts were recognized here in its fullest extent, it would not affect the question, whether or not tbe will of September, 1841, was revoked by that of tbe 7th of March, 1852. For by a long train of decisions, in which have concurred many of the greatest legal minds which have adorned the English bench, it is equally well settled, that “ a will duly executed according to the statute, though prevented from taking effect, in consequence of some matter dehors the will, as the incapacity of the person to whom the disposition is made, to take, is a revocation of a former will.” 1 Jarm. Powell on Dev. 586; 1 Lomax on Ex’ors, 52; Eccleston v. Speeke, 3 Mod. R. 258; Onions v. Tyrer, 1 Pr. Will. 345; Smith v. Ellis, 1 Ves. 17; Roper v. Radcliffe, 10 Mod. R. 230; Ex parte Ilchester, 7 Ves. jr. 378. And this result will follow where the devises of the last will are inconsistent with the disposition made of the estate by the prior will, although there is no revoking clause. Lomax on Ex’ors, 48; 1 Powell on Dev. 586. This doctrine has been adopted without exception, by the courts in this country; at least we have found no case, nor have we been cited to one in which a contrary doctrine was laid down.

Put counsel insists that the old “English cases and dicta,” in favor of the revoking operation of a devise which fails from the incapacity of the devisee to take, ought not to be followed by this court. They endeavor in support of this proposition, to assimilate the case at bar to those classes of cases in which it has been held, that “ a revoking clause or an act of cancellation is inoperative when associated with an ineffectual attempt to devise.” But no case, as we have above remarked, has been found or cited by counsel, in which the principle contended for has been applied. Lomax and Powell have been referred to as questioning the propriety of the rule on this subject, as recognized by the previous cases in England, and as expressing a doubt whether they would now be followed. 1 Lorn, on Ev. 52; 1 Pow. on Dev. 598, note.

The reason why a revoking clause, when associated with an ineffectual attempt to devise, has been uniformly held to be inoperative, is very clearly stated in Ex parte Ilchester, before cited. “Where,” says the Master of the Bolls, “there is nothing but the mere fact of a new devise, the intention to revoke can only be considered with reference to the new devise, and as the testator means to give effect to it; and if the instrument is so made as to be incapable of operating, I cannot conceive how an instrument, inoperative to its direct purpose, can give effect to an intention of wbicb I know nothing, but by that purpose. I know nothing of this intention, but by the manifestation of the other.”

The reason assigned why the intention to revoke in that case, should not take effect, is not applicable to the case under consideration, for this obvious reason; the intention to revoke was not associated with, or dependent upon a disposition, which failed by reason of the insufficient execution of the will. Indeed, it may be truly said, that in such cases, the will of the testator has not been defeated, although, by reason of the incapacity of the devisee, his testamentary purpose is invalid. As in the case at bar, the testator was presumed to know that the devisee was legally incapable of taking under the will, yet we must suppose, that he determined, under this circumstance, to execute the will, which he did, believing that the incapacity of the devisee would be removed by law, or by some other means, before the will would be consummated by his own death.

It is equally clear that the rule which renders an act of obliteration or cancellation, when coupled with an ineffectual attempt to make a new devise, inoperative as a revocation, does not apply in the case before us.

An act of cancellation or of obliteration, when offered as a revocation, is never regarded as conclusive of the intention to revoke, which is the essential ingredient in an act of revocation. It is equivocal in its very nature; and is never held to amount to more than primd facie evidence. In a case of this kind, where the question is always one of intention, it is fairly inferrible, where the act of cancellation is associated with another, upon which it is dependent, and which fails of effect, the primd facie presumption of an intent to revoke is rebutted, and another presumption arises, “that the cancellation or obliteration would not have been done, but in subserviency to the different testamentary disposition, which has failed.”

But this reason cannot be applied to a case of express revocation, by a will duly executed according to the statute. In such a case, the act of revocation is unequivocal; and not being equivocal, it is incompetent to seek for the intention outside of the instrument itself. The very ground on which tbe argument of counsel is based, that is, the assumption that an express clause of revocation in a will duly executed, according to the statute, amounts to only primá facie evidence of the intention to revoke, fails them here. Indeed, the doctrine of dependent relative revocations, in which the act of cancelling, &e., being done with reference to what is intended to be an effectual disposition, will be a revocation or not, according as the relative act is efficacious or not, can have no relevancy to a case in which the intent to revoke is declared in a will or declaration in writing, duly executed, and which is, of necessity, unequivocal, and therefore conclusive as to such intent.

The complainants, in their bill prayed that certain issues might be made up, and certified to the Circuit Court, to be tried by a jury. Amongst these were the following issues, to wit: “Whether the said instrument, executed on the 7th of March, 1852, was executed under the mistaken belief, that the said negro child slave, therein mentioned, was capable in law of taking the estate therein devised?” — “whether the said instrument, executed on the 7th of March, was intended by the testator to revoke all other wills at all events, or only to give effect to the disposition of his estate to the said devisee, in the event she was adjudged capable in law, of taking the estate therein devised?” — and “ whether the said will was procured or executed by fraud, under misrepresentation, or misunderstanding of either law or fact, influencing said testator thereto ?”

The court refused to order these issues to be made up and certified, but directed the two issues above recited to be made up and certified to the Circuit Court. This action of the court constitutes the subject of another exception.

Counsel insist that this was error, inasmuch as the questions of revocavit vel non, of mistake of law and fact, and of fraud in the procurement of the execution of the will, were excluded from the consideration of the jury.

The bill, in reference to the will of the 6th of March, 1852, alleges that the testator was induced to execute it; but it is not stated that such inducement was fraudulent. And in regard to the will of the 7th of March, 1852, the only allegations by which it is impeached were, that tbe testator was legally incompetent to dispose of bis éstate by will; and that be made it under a mistake of law, in reference to tbe capacity of tbe devisee to take tbe property bequeathed. But if it were conceded that tbe complainants, upon tbe allegations of tbe bill, were entitled to have an issue made up to try tbe question of fraud — which, we apprehend, they were not — it is clear that they were not prejudiced, as tbe question of fraud might with propriety have been considered by tbe jury, under tbe issues ordered by the court.

Tbe issue, in regard to tbe question, whether tbe testator made tbe will of tbe 7th of March under a mistake as to tbe legal capacity of tbe devisee to take the bequest, in our opinion was properly excluded from tbe jury. From tbe principles above laid down, tbe fact that tbe testator laboured under a misapprehension, as to bis power to bequeath bis property to a slave — which was a mistake of law, and not of fact — could not render tbe will, made under such misapprehension, invalid as a revocation of bis former wills. It was, therefore, an issue which, decided either way, could have bad no effect upon tbe questions in tbe determination of which tbe complainants were interested.

Tbe issue of revocavit vel non was substantially involved in tbe second issue certified to tbe Circuit Court; and when tbe jury found that tbe testamentary paper of tbe 7th of March, 1852, was tbe last will and testament of tbe testator, duly executed, according to all tbe formalities prescribed by tbe statute, they determined that issue; as the necessary and legal effect of tbe establishment of tbe will of tbe 7th of March, 1852, as the last will and testament of tbe testator, was .the revocation of all bis wills of prior date.

It is further objected, that tbe verdict is not responsive to tbe issues submitted to tbe jury; and that they failed entirely to find whether tbe testamentary paper of tbe 7th of March, 1852, was tbe last will and testament of tbe deceased.

It is unquestionably true, that tbe jury must find all the material, questions presented by tbe issues submitted to them. Was the verdict of tbe jury a substantial finding of tbe issues ?

' Tbe jury found that “ Robert Hairston was of sound and disposing mind at the time of making the will of the 7 th of March, 1852 ; and that the same was executed and attested according to law.” This, we think, was a sufficient finding; it covers, substantially, the whole issue.

Some other objections are urged, which we deem it unnecessary to notice.

Believing the decree to be correct, we order it to be affirmed.