In re Noon's Will, 115 Wis. 299

In re Noon's Will

115 Wis. 299 | Wis. | 1902

BardeeN., J.

Both the county and circuit courts found that the second will executed hy the deceased contained a clause revoking all former wills. This fact is challenged by the appellants, but, inasmuch as all the testimony in the case on that subject is to the effect that such a clause was contained therein, we cannot disturb the finding. Sec. 2290, Stats. 1898, provides, in substance, that no will shall be revoked unless by burning, tearing, canceling, or obliterating the same with intention to revoke, or by some other will or codicil in writing, executed as the law requires. Therefore, where a second will is drawn and executed with the formality required by the statute, and containing an unlimited revoca-tory clause, all former wills are wiped out and held for naught. The operation of the revocatory clause is immedi*302ate and absolute. It is an act done solemnly and deliberately for present effect, and not one contemplating that future circumstances are to determine whether it shall have force. As stated by the court in Scott v. Fink, 45 Mich. 241, 7 N. W. 799: “It operates at once, and does not apply as a mere contingent caveat against the objects at which it was aimed.” The addition of the revocatory words is a mode of immediate cancellation of the former will, and renders it totally inoperative as a testamentary instrument. See Cheever v. North, 106 Mich. 390, 64 N. W. 455; Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959; In re Goods of Hodgkinson [1893] Prob. Div. 339. By the great weight of authority in this country the destruction or revocation of the subsequent will containing the revocatory clause does not have the effect of reviving the former will. Oassoday,-Wills, § 386, and authorities cited. Therefore the fact that the second will drawn by the testator was destroyed, or could not be found after his death, did not revive or give legal vitality to the former one.

The question next arises whether there is anything in the case to show that the former will has been revived in'such a way as to warrant the court in admitting it to probate as a legal will. The county court decided that, although the testator may have filed the first will with intention to revive the same, such act was not such a re-execution or republication as would operate to give it new life. The circuit court negatived the intent to revive, and found that the deposit of the first will with the county judge was through inadvertence or mistake. There is considerable evidence in the record to justify the findings of the circuit court, but we prefer to consider the case upon the facts as found by the county judge. We start with the assumption that the first will had been duly revoked, and was not revived by the loss or destruction of the second. The first will was then without any legal validity. The situation was the same as though it had never been written. Sec. *3032282 provides that no will made within this state since January 1, 1896 (except nuncupative wills), shall be effectual to pass any estate, unless it be in writing, signed by the testator, or by some one authorized by him, and attested in the presence of the testator by at least two witnesses in the presence of each other. This court has decided that it is not necessary to the validity of a will that the witnesses thereto should know the nature of the instrument they are signing; nor is it necessary to the probate thereof that they should testify that the testator declared it to be his will. Allen v. Griffin, 69 Wis. 529, 35 N. W. 21; Skinner v. American Bible Soc. 92 Wis. 209, 65 N. W. 1037. The will, however, must be executed in substantial conformity to the statutory requirements, to be valid. The first will having become legally dead by revocation, we can see no way in which it could be revitalized except by some act which the law recognizes as being equivalent to execution under the statute. A codicil or subsequent writing adopting the former will, duly executed, or a re-execution of the old will with the required formalities, would undoubtedly revive it. See Skinner v. American Bible Soc., supra; Flood v. Kerwin, 113 Wis. 673, 89 N. W. 845. Any act short of that would lead to confusion, and open the door to fraud. The legislature, having seen fit to prescribe in definite terms the manner in which a will shall be executed to be valid, have indicated a policy which ought not to be frittered away by evasions or exceptions. We are aware that there are cases in the books and cited by appellants’ counsel which say that the question of reviving a will is simply one of what the testator intended. That question, no doubt, may be involved in many casas; still it cannot be permitted to override or annul plain statutory requirements. To make a valid testamentary disposition of property, there must be substantial conformity to all statutory requirements. We believe the better and safer rule *304to be to require that a will once revoked, to be revived, must either be re-executed or adopted by some subsequent writing, executed as the statute requires. Gary, Prob. Law, § 172.

By the Gourt. — The judgment is affirmed.