140 Conn. 311 | Conn. | 1953
The plaintiff, a niece of the testatrix, who was left nothing under her aunt’s will and cod
The testatrix, Celestine L. Dupre, died in Putnam on April 19,1951, leaving as her heir at law and next of kin her niece, the plaintiff. The testatrix left a will dated March 26,1951, and a codicil thereto dated April 10, 1951. These instruments were admitted to probate on May 22, 1951. Item five of the will reads as follows: “All the rest, residue and remainder of my property of whatsoever the same may consist and wheresoever the same may be situated, both real and personal, I give, devise and bequeath one-half to my nephew, Nelson Lamoth of Taftville, Connecticut, to be his absolutely; the other one-half to Aurea Seneeal of 200 Providence Street, Putnam, Connecticut, to be hers absolutely.”
The codicil reads as follows: “1. I hereby revoke Item Five of said will and substitute for said Item Five the following: Item Five: All the rest, residue and remainder of property of whatsoever the same may consist and wheresoever the same may be situated, both real and personal, I give, devise and bequeath one-half to my nephew Marcisse La-
Aurea Seneeal is not related to the testatrix. One of the three subscribing witnesses to the codicil was Adolphe Seneeal, who at the time he witnessed the codicil was, and still is, the husband of Aurea Seneeal. Section 6952 of the General Statutes, so far as material, provides as follows: “Every devise or bequest given in any will or codicil to a subscribing witness, or to the husband or wife of such subscribing witness, shall be void unless such will or codicil shall be legally attested without the signature of such witness . . . ; but the competency of such witness shall not be affected by any such devise or bequest.” As the court pointed out in its memorandum of decision, any bequest to Aurea Seneeal in item five of the codicil was void because her husband was a subscribing witness. The question left to be answered, therefore, was whether the devise or bequest to the defendant Aurea under item five of the original will stands. It is to be noted that the only difference between item five of the will and item five of the codicil is the substitution for the words “my nephew, Nelson Lamoth of Taftville, Connecticut,” in the former, of the words “my nephew Mareisse Lamoth of Taftville, Connecticut, also known as Nelson Lamoth,” in the latter. It is also to be noted that by the second paragraph of the codicil the testatrix confirmed the will “in all respects except as altered by this Codicil.”
The defendants’ brief suggests that the issue on this appeal is whether the doctrine of dependent relative revocation may be invoked to sustain a gift by
In a later case involving the principle, we stated: “The case, therefore, is within the reason of the rule that a writing purporting to revoke a will on account of the existence of a certain fact does not revoke it if there be no such fact. Dunham v. Averill, 45 Conn. 61, 80. It is true that the mistake is, at bottom, one of law. [The testatrix] supposed that her unsigned and unattested will would have full effect upon her decease. In law it had no effect. But as respects a question of this nature, it is immaterial whether the
So far as the factual situation is concerned, it would be difficult to conceive of a more deserving case for the application of the doctrine of dependent relative revocation than the one before us. There is no room for doubt that the sole purpose of the testatrix in executing the codicil was, by making the very minor change in referring to her nephew, to eliminate any uncertainty as to his identity. Obviously, it was furthest from her intention to make any change in the disposition of her residuary estate. When the will and codicil are considered together, as they must be, to determine the intent of the testatrix, it is clear that her intention to revoke the will was conditioned upon the execution of a codicil which would be effective to continue the same disposition of her residuary estate. Therefore, when it developed
It only remains to consider the plaintiff’s further claim that, even though the doctrine of dependent relative revocation does prevail in Connecticut, it cannot be applied in the present case because of the reason for the invalidity of the gift under the codicil to the defendant Aurea. The claim is that, since the history of § 6952 shows that from the beginning its purpose was to prevent the subversion of wills, the doctrine considered above cannot be utilized as a means of defeating the very purpose of this express statutory provision. There very likely could be a case where on the facts there would be force to this argument. However, this cannot be said to be so here. The history of the statute as traced in the plaintiff’s brief shows that the subversion of wills which it was designed to prevent was that which results from the scheming activities of persons in a position to utilize the capacity of attesting witnesses to take advantage of testators by overpersuading them to make wills in favor of the scheming persons. There is no intima
Since the defendants expressly stated that no claim is made under their cross appeal in the event that the plaintiff fails to prevail on her appeal, the former calls for no consideration.
There is no error.
In this opinion the other judges concurred.