373 Pa. 473 | Pa. | 1953
Lead Opinion
Opinion by
Testatrix’s daughter appeals from a decrée of the Orphans’; Court which sustained an order of the Register of Wills,'which admitted decedent’s will to probate
Mrs. Kehr left her original will for safe-keeping with her attorney, Rowland C. Evans, Sr., and received from him and took home with her an exact carbon copy. The will gave testatrix’s estate principally to charities and contained no provision for the petitioner, who is testatrix’s only child.
Mrs. Kehr died on July 2, 1951, and Rowland C. Evans, Jr. probated her will of August 7, 1942, and qualified as executor. An exact carbon copy of the original will was found after Mrs. Kehr’s death in a bureau drawer in her bedroom. At the top of the first page of this unexecuted copy, in the blank space above the typewritten words of the will, she had written in ink the words “Null and Void” and under these words “S. H. K.” It was duly proved and the Court below found that the words “Null and Void” and the initials were all in decedent’s handwriting.
Did this show a revocatory intent and if so, what did the testatrix attempt to revoke? To answer these questions we must place ourselves in the armchair of the testatrix at the time of the alleged revocation and consider all the facts and circumstances surrounding her: Jackson’s Estate, 337 Pa. 561, 12 A. 2d 338; Britt Estate, 369 Pa. 450, 87 A. 2d 243.
In Jackson’s Estate, 337 Pa., supra, this Court said (pp. 565, 566) : “. . . in interpreting wills [or alleged revocatory writings] which do not unmistakably reveal the maker’s intention ... ‘You may place yourself . . . in the testator’s arm-chair and consider the circum
Mr. Evans testified that Mrs. Kehr did not have her original will because he had refused to deliver it to her until she paid him a fee for drawing it. This evidence was, under the aforesaid authorities, clearly admissible since it was one of the important facts and circumstances surrounding testatrix when she wrote the words “Null and Void” on the copy of her will.
Mr. Evans also testified that Mrs. Kehr wrote him two letters in the summer of 1946 (which he could not find) in which she stated that her will was null and void and had been cancelled; and that she intended to make a new will which would be prepared by Mr. Hermes. The testimony concerning testatrix’s intention to make a new will was corroborated by the finding of the Auditing Judge: “Other pencilled memoranda, in the handwriting of testatrix, appeared among her personal effects. These memoranda indicate that she was preparing data incident to the drawing of a new will. However, no such will was discovered.”
Whenever an instrument is ambiguous or the intention to will or to revoke is uncertain, acts, declarations and relevant circumstances are admissible to clarify or explain the ambiguity or to prove testator’s intention. This evidence of decedent’s acts and declarations and the relevant circumstances are therefore admissible under the facts in this case (1) as (corroborative) evidence of her intent to revoke when she used the words “Null and Void”; and (2) as an explanation of what the words “Null and Void” on the carbon copy referred to, i.e., her original will. Cf. Ford’s Estate, 301 Pa. 183, 195, 151 A. 789; Wenz’s Estate, 345 Pa. 393, 29 A. 2d 13; Koehler’s Estate, 316 Pa. 321, 323, 175 A. 424; Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20;
“Statements tending to show intent are admissible in evidence although self-serving”: Smith v. Smith, 364 Pa. 1, 9, 70 A. 2d 630. Speaking of this type of evidence, Professor Wigmore in his treatise on Evidence (3rd Ed., Vol. 6, §1737) says: “But since the question is here merely one of the existence of a state of mind, may we not infer the testator’s then state of mind from his state of mind at a prior or subsequent time not too remote? . . . hence, as evidence of this prior or subsequent state of mind, utterances at the prior or subsequent time are admissible.” Just as the animus testandi is an indispensable ingredient of a will, so the animus revocandi is an indispensable ingredient of a revoking instrument: Cf. Wenz’s Estate, 345 Pa., supra.
Were all these facts and circumstances considered together sufficient to prove a revocation of the will of August 7, 1942?
The Wills Act of 1947 (April 24, 1947, P. L. 89, 20 PS 180.1 et seq.) provides: “Section 5. Revocation of a Will. — No will or codicil in writing, or any part thereof, can be revoked or altered otherwise than: (1) Will or Codicil. By some other will or codicil in writing, (2) Other Writing. By some other writing declaring the same, executed and proved
Several questions immediately arise: (a) Was this unexecuted copy of her will “some other writing”; (b) did the words used amount to a declaration of revocation; (c) were the initials a sufficient signature or execution; (d) was the revocation signed at the end of the revoking instrument; and if all these questions
These are close questions but they are made closer and more difficult by the following additional facts: On the first page of this carbon copy are several spelling corrections, namely, the “z” in Suzanna is stricken and above it is inserted an “s” in ink; in the fourth paragraph, the “Y” in Yarlborrough is stricken and inserted above it is the letter “M” and to the right thereof appears an “M” and the initials “S. H. K.”, all in pencil. A penciled “X” has been drawn through the third, fifth and tenth paragraphs.
The words “some other writing” are plain and mean just what they say. No particular form or specific kind of language, instrument or writing are required; “it can be any sort of writing”; even an ineffective will has been held to be “some other writing” and hence a sufficient compliance with the Act: Harrison’s Estate, 316 Pa. 15, 173 A. 407; Gray Will, 365 Pa. 411, 76 A. 2d 169; Burtt Will, 353 Pa. 217, 44 A. 2d 670.
The words “Null and Void” are clear; and undoubtedly amount to a declaration of revocation. “. . . the declaration of revocation need not be express,
Was the revoking instrument executed in the manner required of wills, i.e., “Every will . . . shall be signed by the testator at the end thereof . . .”? This clearly means that the revoking instrument must be signed by testator at the end of the revocation just as a will must be signed at the end of a will. “The end contemplated by the statute is the logical end of the language used by decedent in expressing his testamentary [here, his revocatory] purpose”: Coyne Will, 349 Pa. 331, 333, 37 A. 2d 509. There is no doubt in our minds that the revoking instrument was signed at the end thereof.
The Court below further found, and we agree, that the signature by the initials is sufficient in this case to constitute the signature and execution required by the Wills Act.
In Knox’s Estate, 131 Pa. 220, 18 A. 1021, this Court said, (p. 231) : “What, therefore, shall constitute a sufficient signature must depend largely on the custom of the time and place, the habit of the individual, and the circumstances of each particular case. As already seen, the English and some American cases hold that a signature by initials only, or otherwise informal and short of full name, may be a valid execution of a will or a contract, if the intent to execute is apparent”.
We are therefore convinced that the requirements of the Wills Act providing for revocation of a will “by some other writing declaring the same, executed and proved in the manner required of wills” have been sufficiently complied with if the revocation is applicable to testatrix’s will of August 7, 1942.
If the words “Null and Void”, followed by the signature of testatrix, had appeared at the same place on the original will as they did on the carbon copy, it
We believe that the testatrix intended to, and under the exceptional facts in this case, succeeded in revoking her original will of August 7, 1942, by some other writing declared'the same revoked or cancelled,'which was .duly signed by her at the end thereof and proved in the manner' required by the Wills Act.
It is conceded that it was proved in the manner required of wills.
The paragraphs through which “X” is drawn contained a legacy of $1000 to George Hoover Streeter; a legacy of $500 to the Union Home; and a gift of the residuary estate to St. Alban’s Chapter, Order of the Eastern Star.
This presents no difficulty since the month and day of the year are often filled in in a will by the attorney, or stenographer, or by a witness, instead of by the testatrix.
Dissenting Opinion
Dissenting Opinion by
I am unable to join in the majority opinion. The single question involved is whether or not a notation on an unexecuted, altered, carbon copy of a probated will constitutes a revocation of the will under the provisions of the statute. The majority hold that it does. I am of the contrary view.
At the inception it is to be borne in mind that the privilege of disposing of an estate by will or through inheritance is not a natural or a constitutional right but exists solely by grace of the sovereign: Strode v. Commonwealth, 52 Pa. 181; Maginn’s Estate, 278 Pa. 89, 98, 122 A. 264; U. S. v. Perkins, 163 U. S. 625, 16 S. Ct. 1073. It is the sovereign which prescribes by statute the manner in which such disposition shall be accomplished. Even though testator’s intent to make a certain testamentary disposition clearly appears, such intent is totally ineffective unless embodied in a will made and executed in accordance with the terms of the statute: Maginn’s Estate, 278 Pa. 89, 91, 122 A. 264; Baldwin Will, 357 Pa. 432, 440, 55 A. 2d 263. As Justice (later Chief Justice) .Kephart said in Maginn’s Estate, supra, p. 91: “It is possible, in some cases, a ‘decedent may have thought he had made a will, but the statute says he had not. The question is not one of his thought in that respect, but what he actually did, or . . . failed to do ... . “It may happen [that] .• . . wills truly, expressing the intentions of the testators are made without observations of the required forms; whenever, that happens, while the genuine intention is frustrated . . .• the legislature . . . has thought it best-,
'••• This philosophy .applies equally to revocation. Valid wills may only be set aside in the manner prescribed
This rule is one of general application. In re Aker’s Will, 74 App. Div. 461, 77 N.Y.S. 643, aff’d 173 N.Y. 620, 66 N.E. 1103, involved an attempt to revoke by a signed writing on the margin of the original will. The court held it ineffective because not witnessed as required by statute saying (p. 647): “Where a will is sought to be revoked solely, by writing, it must con: form in that respect to the requirement of the statute; and, failing in that, it does not revoke the will, even though there may be a clear intention so to do. In the present' case the' testator attempted to-revoke his
As stated in the majority opinion, Susanna Hoover Kehr executed a will dated August 7, 1942, which had been prepared by her attorney. She left the original will with him for safekeeping and retained for her own purposes the unexecuted carbon copy. By the terms of her will testatrix gave the larger portion of her estate to charities. She made no provision for her daughter.
Testatrix died on July 2, 1951. Shortly thereafter her will dated August 7, 1942, was duly admitted to probate and letters testamentary were granted to the executor named therein.
Subsequently, the unexecuted carbon copy of the will which the decedent had retained was produced by her daughter. At the top of the first page, above the typing and written by testatrix in ink, appears the notation “Null and void” and immediately under these words, the letters “S. H. K.” (her initials). Paragraphs three, five, and ten of the carbon copy are crossed out, and on page one of the carbon copy are two corrections in her handwriting. Contending that the will was revoked by the notation which appears on the unexecuted carbon copy, decedent’s daughter took an appeal from probate.
The single • question involved, as above stated, is whether or not this notation appearing on the unexecuted carbon copy of decedent’s will is another-writing sufficient- in and..of--itself .to- revoke the- will which is otherwise yalid...-.- ......-.- •
■Section 5 of the Wills Act of .1947 (April. 2.4, 1947, P. L. 89, 20, PS. 180.5) ..prescribes three-methods:--by which .a will or-.codicil in writing may be revoked;-viz.,
In considering whether an attempted revocation meets the requirements of the Wills Act, supra, a sharp distinction must be drawn between the three statutory permissible methods of revocation. (1) Revocation may be by terms of another will. (2) To effect revocation by “some other writing,” the words of that writing must expressly declare that the will is revoked. (3) Cancellation is accomplished by an “act to the document [will]” itself.
I have carefully considered the legal effect of the notation which was found on the unexecuted carbon copy which the majority term a “declaration of revocation.” The writing consists merely of three words: “null and void” — two adjectives and a conjunction. It omits any verb. If these words, and nothing more, had been written on a blank piece of paper no one could seriously contend that parol evidence should be received to establish that decedent had thereby intended to say, “I hereby declare that my last will and testament is null and void.” This would be clearly equivalent to revocation by parol. Every legal authority would unhesitatingly condemn it, and there could be no justification for introducing such evidence under the guise of explaining an ambiguity. There would be no words to interpret. The document would fail to operate as a revocation irrespective of decedent’s true intention to the contrary: .....
I freely concede that if the same words had been written on the face- of a valid will, such, will would be effectively revoked. This would be no declaration Of
With the above stated hypothetical cases in mind, considering only the question whether or not the notation involved in this case meets the statutory standard (.without regard for any expressions of revocatory intent outside of the writing itself), the character of the notation is readily apparent. In and of itself it declares nothing, and therefore cannot be “some other writing declaring [revocation].” It is an act of cancellation. It cancels the document on which it was written. If this unexecuted document never possessed legal efficacy, I agree that testatrix accomplished nothing by her notation, and therefore did a useless thing. But irrespective of testatrix’s real intention this does not justify the admission of parol testimony to prove that she meant to cancel her original will, any more than it would be proper to show that the writer of an unsigned will really meant it to be his will but neglected to execute it.
The majority have quoted from Gray Will, 365 Pa. 411, 76 A. 2d 169, as follows: “. . . the declaration of revocation need not be express, it may ... be by necessary implication.” They have omitted the succeeding explanation of that remark in Gray -Will: “An earlier will- can be revoked by -a later' will, or other writing which-expressly revoke's it,-Or:which disposes..:of an estate: in ::an- .entirely different ¿manner: than the earlier will and is inconsistent therewith. There is no. difference in'principle:'between a' revocation', by ah 'express clause or .by"inconsistent provisions: [citing', cases].'” ^Emphasis- supplied ) Revocation, by inconsistent..proyi
The majority cite Ford’s Estate, 301 Pa. 183, 151 A. 789, and Burtt Will, 353 Pa. 217, 44 A. 2d 670, where parol testimony was admitted. But in both of these cases the controlling issue was revival (not revocation) of wills. In the Ford Estate the will containing an express clause of revocation was revoked by tearing or destroying the signature of decedent. Testimony was offered to prove the fact that cancellation was done at testator’s direction and also to prove testator’s intention to revive the earlier will. In Burtt Will the revocation was accomplished, as in Gray Will, supra, by inconsistent provisions in a later will. In both cases revocation toas conceded and the question of revival Avas the sole issue. In the present case the question at issue is one of revocation only; viz., Was a revocation established under the permissive terms of the statute?
The majority obviously fail to distinguish cases involving words which have an equivocal meaning and those cases Avliere the intention of testator cannot be determined because he has omitted language to express his thoughts. The alleged revocatory notation made no reference Avhatsoever to the original will. Nor is there any attempt to incorporate it by reference. If language is ambiguous, extrinsic evidence may be ad
Extrinsic evidence may not supply language which testator has omitted. If the testator’s intention cannot be ascertained because of the omission of language, the alleged revocatory writing must fail of its purpose. The inquiry is confined to the meaning of what the testator has said, and does not extend to the consideration of what he might have said but did not: Nebinger’s Estate, 185 Pa. 399, 39 A. 1049; Conner’s Estate, 346 Pa. 271, 29 A. 2d 514. Interpretation is never permitted to assume the proportions of reformation: DeSilver’s Estate, 142 Pa. 74, 21 A. 882; Jacob’s Estate, 343 Pa. 387, 22 A. 2d 744. It is true in construing ambiguous language of a will we must put ourselves in testator’s “arm chair” in order to determine his intention but we are still required to declare the meaning of the language used, and not some other possible but undisclosed purpose: Yate’s Estate, 281 Pa. 178, 126 A. 254. If intent cannot be gathered from the writing itself, words cannot be supplied to disclose it: McKeehan v. Wilson, 53 Pa. 74; Rouse Estate, 369 Pa. 568, 573, 87 A. 2d 281. The only words which Susanna Kehr used were “null and void.” The majority are obviously supplying words for testatrix when they determine from extrinsic evidence that she meant to say but did not: “I hereby declare that my last will and testament of which this is a copy is null and void.”
For these reasons I dissent. I would affirm the decree of the learned court below.