Holt Estate
Supreme Court of Pennsylvania
November 14, 1961
405 Pa. 244
Upon appeal to this Court the chancellor‘s decision will not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying the correct principles of law: Molden Will, 387 Pa. 484, 500-501, 128 A. 2d 568; Williams v. McCarroll, 374 Pa. 281, 298-299, 97 A. 2d 14, and numerous cases cited therein; DeLaurentiis‘s Estate, supra; Masciantonio Will, 392 Pa. 362, 141 A. 2d 362.
We agree with the lower Court that considering all the evidence in the light of the foregoing authorities it was clearly insufficient to raise a substantial and material dispute which would justify the granting of an issue. Certainly it cannot be said that the lower Court abused its discretion.
Decree in each appeal affirmed; appellant to pay the costs.
Carmen V. Marinaro, for appellant.
Norman D. Jaffe, with him Luther C. Braham, Darrell L. Gregg, Richard B. Kirkpatrick, and Galbreath, Braham, Gregg, Kirkpatrick & Jaffe, for appellee.
This is an appeal from the decree of the Orphans’ Court of Butler County which set aside the probate of the will of J. Leo Holt, declared that decedent had died intestate and directed the Register of Wills to issue Letters of Administration. The matter was heard before the Court below on a petition for a declaratory judgment under the
Decedent died on March 5, 1958, survived by his widow and two minor children, Sharon Lee Holt and Georgia Lynne Holt. There was found among his possessions an instrument dated January 7, 1944, which was offered for probate as his last will and testament, together with a codicil thereto dated June 17, 1950, which was also offered for probate. Testator was married to his present widow prior to 1944, but his two children were born subsequent to 1944. In the event of intestacy decedent‘s widow and children would of course share his estate.
The instrument of January 7, 1944, (1) directed the payment of decedent‘s debts, inheritance tax and expenses of administration and (2) devised the residue of his estate to his wife. The codicil of June 17, 1950, consisted of two clauses; the first republished his 1944 will, and the second clause appointed the Butler Savings & Trust Company as guardian for his minor children.
Decedent had written across the bottom of the instrument dated January 7, 1944, the following:
“Sept. 8-1955
“I hereby render this will void and intend to make one revised.
“J. Leo Holt”
The
“No will or codicil in writing, or any part thereof, can be revoked or altered otherwise than: . . .
“(2) Other writing. By some other writing declaring the same, executed and proved in the manner required of wills, . . . .”
In Taubel Will, 398 Pa. 19, 156 A. 2d 858, testatrix wrote on the margin of an unsigned, unconformed, typewritten copy of her will—which copy was made subsequently and on a different typewriter but was the same in content (with one unimportant exception) as the signed original—a notation including the words “this will is null and void” and signed it at the end. This Court held that this instrument was an effective revocation of her signed original will and said: “. . . It is, of course, settled law that an ‘other writing’ need not be in any particular form or any specific kind of instrument; it can be any sort of writing so long as it indicates the intent to revoke and hence sufficiently complies with the Act. Kehr Will, 373 Pa. 473, 95 A. 2d 647; Gray Will, 365 Pa. 411, 76 A. 2d 169.
“The requirements for revocation are that the instrument be in writing; state its purpose to be that of revocation; identify what is to be revoked; be signed at the end with the intent to revoke; and that the signature be proved by two competent witnesses. All of these elements have been clearly established in this case. It is conceded that this revocation is in writing; signed at the end; and that the signature is that of the decedent. The revocatory inscription itself states
It is clear that all of the essential requirements have been met in this case. The revocation is in writing, it is signed at the end, and it is conceded that the signature is decedent‘s. His statement “I hereby render this will void” clearly indicates its purpose to be a revocation of the instrument. Likewise, the fact that these words were written on the instrument itself clearly evidences and identifies what was revoked.
However, appellant-widow contends that the following words “and intend to make one revised” which followed the words of revocation, render the purported revocation dependent or conditional and hence ineffectual because a revised will was never executed. For this proposition she relies on the so-called doctrine of dependent relative revocation which this Court applied in Braun Estate, 358 Pa. 271, 56 A. 2d 201. In that case a codicil to a will contained the following provision: “First: I hereby revoke the Trust Fund in favor of my Daughter Mildred, and substitute a lump sum of dollars in cash.” This Court held that the attempted revocation was legally ineffectual. The Court said (page 275):
“Here we have a case where the dispositive part* of the revoking instrument fails because of a defect intrinsic to the instrument, in that, the bequest which
was to be the substitute for what the codicil purported to revoke was permitted to remain incomplete. Accordingly, the doctrine of dependent relative revocation at once became applicable. The circumstances of the case aptly fit the requirements of the rule, a concise statement whereof is to be found in Jarman on Wills (7th Edition, 1930), Vol. 1, at p. 135, as follows: ‘Where the act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, such will be the legal effect of the transaction; and therefore, if the will intended to be substituted is inoperative from defect of attestation, or any other cause, the revocation fails also, and the original will remains in force . . .‘“.
For reasons which will presently become apparent the doctrine of dependent relative revocation as applied in Braun Estate, 358 Pa., supra, has no application to this case.
In Emernecker‘s Estate, 218 Pa. 369, 67 A. 701, the factual situation was closer to the instant case. In that case testatrix destroyed her will declaring her intention as here to make another one. We there held that the unfulfilled intention to execute a new will did not render the revocation ineffective. In so holding we appropriately said (pages 371-372): “The undisputed facts of this case do not admit of any question as to the legal result, however much we may be impressed that the testatrix‘s act was induced by an erroneous belief as to the law. She intentionally destroyed the will, and declared she had done so with intent to make another. She knew what she was doing and the effect of it, and she did it animo revocandi, with intent to produce that effect. Her reasons were not matter of inquiry for the court. Whether, if she had felt sure that the will already executed would ac-
As in Emernecker‘s Estate, supra, we cannot know or say with any accuracy or certainty—indeed it is the sheerest speculation—whether decedent would change his mind or carry out his intention to make a new will and if so what decedent would or might have provided in a new will. What we believe is clear and certain is that decedent did not wish or intend to dispose of his estate under his will of 1944 which he specifically said he rendered void.
The doctrine of dependent relative revocation is not favored in this Commonwealth and has rarely been applied.* The reason is obvious—it usually furnished
In McClure‘s Estate, 309 Pa. 370, 165 A. 24, the Court said (page 373): “The doctrine of dependent relative revocation, an inferred intention of the testator, to be applied under given circumstances, has not as yet been accepted in its arbitrary form in this State. For its satisfactory solution there is nothing to lead the judicial mind with [saying] anything approaching logical certainty to the testatrix‘s real intent, when the provision of the second will fails either from internal or external causes: Price v. Maxwell, 28 Pa. 23, 39.”
It is clear from all of the authorities herein cited that (1) the doctrine as applied by our Courts is primarily a rule of testamentary construction which is used as an aid in ascertaining the intent of the testator, and (2) the doctrine has been applied only where there is (a) either a defective execution of a subsequent will or codicil* or (b) an intrinsic defect in the subsequent will or codicil.** However, where the revoking instrument is in itself valid and operative but the subsequent disposition fails for some extrinsic reason such as the incapacity of the devisee to take, the revocation nevertheless remains effective.*
Appellant makes one other contention which was neither raised in nor considered by the Court below and ordinarily would therefore not be considered by
The questions here involved readily could and should have been raised by an appeal from the probate of Holt‘s will of 1944 and the codicil of 1950, instead of by declaratory judgment proceedings. There are no exceptional circumstances to justify such proceedings. Declaratory judgment proceedings in cases such as this, disrupt appropriate well settled procedures and are likely to increase litigation which is already swamping our Courts; and “A declaratory judgment should not be granted where a more appropriate remedy is available. See Stofflet & Tillotson v. Chester Housing Authority, 346 Pa. 574, 31 A. 2d 274 (1943); Borchard, Declaratory Judgments, 302 (2nd ed. 1941)“: Wirkman v. Wirkman, 392 Pa. 63, 66, 139 A. 2d 658. See to the same effect Eureka Casualty Co. v. Henderson, 371 Pa. 587, 592, 92 A. 2d 551; Capital Bank & Trust Company‘s Petition, 336 Pa. 108, 6 A. 2d 790; Lifter Estate, 377 Pa. 227, 103 A. 2d 670.
Decree affirmed, costs to be paid by appellant.
I concur with the majority opinion in all respects save one. The majority opinion, relying on Wirkman v. Wirkman, 392 Pa. 63, 66, 139 A. 2d 658, states that a declaratory judgment should not be granted where a more appropriate remedy is available. Such a statement is contrary to both the provisions of the
The decisional point in Wirkman, supra, was that the parties, having contractually bound themselves to pursue arbitration to the exclusion of prior judicial relief, were concluded from seeking declaratory judgment. The statement quoted by the majority from Wirkman was dicta and, in my opinion, founded on authority nullified by the passage of the 1943 Act.
Unless the Bench and Bar are to be confused it should be made clear that declaratory judgment may lie even though there be another available remedy. Such was the legislative mandate embodied in the 1943 Act and such mandate we must follow.