44 A.2d 528 | Pa. Super. Ct. | 1945
Argued September 27, 1945. These appeals are from the final confirmation of the adjudication in the estate of Lavinia Faith Heller, deceased. *195 Decedent died testate in April, 1943. She had no issue, and her husband had predeceased her in 1938. A number of collateral relatives survived, and they are named in the stipulation filed in the court below. Her last will and testament was dated December 30, 1940. The will is a holographic one.1 It first directs the payment of debts and funeral expenses. Then follows, on the left side of the page in a column, four names — Alfred W. Burhouse; LeRoy Whitman; Janet Burhouse; Margaret Cohen. Written in ink in the margin to the left of the name of Janet Burhouse is the word "sister." To the right of the last name, also written in ink, are the words "Share alike." Alfred W. Burhouse is named "Executrix." Finally there is a specific gift to Janet Burhouse, sister of testatrix, of all things in the home, with the precatory words that she is to "take or give away anythings you like sell nothing please. Also take care funeral."
The names of the four residuary beneficiaries were crossed out or obliterated by pencil marks. To the right, and above the words "Share alike," written in pencil, appears the following: "know good
The question presented is whether this residuary clause of the will was revoked by the penciled marks and notation.
The court below, in its opinion confirming nisi the adjudication, said it was "convinced that the markings on the will were not intended by the testatrix and therefore are not a cancellation, and that the will stands as originally written." *196
The will of the testatrix was found in a wooden box, with other papers, in a cabinet in her home. A presumption follows, in the absence of evidence to the contrary, that the act of alleged revocation was that of the testatrix (Baptist Church v. Robbarts,
There is also a presumption, if the mutilation and defacement amount to a cancellation or obliteration, that the testatrix acted animo revocandi. Tomlinson's Estate,
We are of the opinion that the testatrix's acts constituted a cancellation of the residuary clause, and that she intended the result which those acts signified — a revocation of the bequests under section 20, paragraphs (a) and (b), of the Wills Act of June 7, 1917, P.L. 403, 20 Pa.C.S.A. § 271, 272.2
The court below considered the words "know good write another" as indicative that the markings in the will were deliberative only. We do not believe this circumstance has such an implication. We think the words show a definite present intent rather than a contemplated future act to bring about a complete revocation. It is difficult for us to conceive of a more definite and conclusive cancellation of a clause or bequest in a will than appears in this will; and the written words are confirmatory of a revocatory intention, and indicate that *197 a revival of the residuary clause or any part thereof would require another will or a codicil.
The court below described the pencil markings over the four names as a smudge, and was of the opinion that it did not constitute a cancellation or obliteration. Cancellation or obliteration of a clause or bequest does not need to be in any prescribed form to be a compliance with the statute. The court in its opinion concluded that "the smudge was made by the testatrix in a contemplative mood when she might have been considering a cancellation or the alteration of her will at some future time, and is more in the nature of an indication of her thought as to what she intended to do rather than the execution of a then present act." A smudge is not an accurate description of the pencil markings over the four names. We entertain no doubt but that the markings were cancellations made with the intention to revoke that portion of the will, although the side rather than the point of the pencil was used for the purpose. The method of revocation by cancellation is largely optional, and is not in itself important (Evans's Appeal, supra,
In Baker's Estate, supra,
We are of the opinion that the action of the testatrix was conclusive, and that the testamentary disposition in question was revoked by cancellation.
The decree of the court below is reversed, and the record is remitted with direction to modify the adjudication in accordance with this opinion, and make the distribution accordingly. Costs are to be paid by appellees.