83 Ala. 432 | Ala. | 1887
The testator, in February, 1884, executed his will in writing, in due form of law, which was properly attested by two subscribing witnesses. He subsequently erased the name of one of the legatees, the appellee, W. H. Law, by drawing a pen through it, so as to expunge it from the instrument. Evidence was offered tending to show, that, both at the time of making this erasure, and afterwards, he declared his intention to revoke the entire will. This evidence was excluded by the Probate Court.
The charges raise the question, as to what effect this erasure or obliteration shall be permitted to have on the will— whether it can operate either as a total or a partied revocation of the instrument under the statute.
The statute on this subject provides that, “except in the cases provided for in the preceding article” \i. e., marriage and birth of issue] “a toill in writing can only be revoked by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence, and by his direction; or by some other will in writing, or some other writing subscribed by the testator, and attested as prescribed in the first section of this article; and when this will is burned, torn, canceled or obliterated by any other person then the testator, his direction and consent thereto, and the fact of such burning, canceling, tearing or obliteration, must be proved by at least two witnesses.” Code, 1886, § 1968; Code, 1876, § 2296.
Tbe Probate Court erred in not admitting tbe declarations of tbe testator explanatory of tbe act of erasing tbe appellee’s name from tbe will. They should have been allowed to go to tbe jury, to explain tbe intention with wbicb tbe act was done; but tbe weight to be given this evidence was entirely for tbe jury.
This obliteration, however, was competent to show only a\ revocation of tbe entire will, and not a part of it. Our construction of tbe statute is, that it was not intended to permit a revocation of a part of a will, by burning, tearing, cancel-ling, or obliterating. Tbe olcl English Statute of Frauds, as we have said, enacted that no devise in writing of any lands, “nor any clause thereof,” should be revocable, except by some other will or codicil in writing, or by burning, cancelling. tearing or obliterating tbe same by tbe testator. 29 Car.' 2, cb. 3. sec. 7; 1 Jarman Wills (5th Ed.), *129. So, tbe Act of 1 Yict. cb* 26, sec. 20, passed in 1837, provides that “no will or codicil, or any part thereof,” shall be revoked except by certain modes indicated. The change made in tbe latter act is, that revocation by cancellation or obliteration is not (as in tbe old law) placed upon tbe same footing as a revocation by burning or tearing. Obliteration, or other alteration, which does not wholly efface tbe will, is no longer effectual, unless executed in tbe manner prescribed for tbe execution of a will. — 1 Jarman on Wills (5th Ed.), *139-140. This change of legislative policy is itself suggestive of tbe fact, that tbe practical operation of tbe old rule was not believed to be promotive of tbe administration of justice. Many English decisions may accordingly be found, wbicb, under tbe influence of tbe former statute, bold that an obliteration of a part of a will may amount to a re- • vocation pi’o tardo. — 4 Kent Com. *532-533; 1 Jarman on Wills, *134; Schouler on Wills, § 397. Tbe difference be-!: tween our statute and tbe English Statute of Frauds, we re-1 peat, is both suggestive and significant. Tbe omission oft the phrases, referring to the revocation of “any part” or “any clause'1'’ of a will, can not bo construed to be uninten
In Lovell v. Quitman, 88 N. Y. 377, supra, recently decided by the New York Court of Appeals, a statute similar to our own, prohibiting the revocation or alteration of a will, except in the like modes specified in the Alabama statute, was construed not to authorize the obliteration by the testator of a clause in his will, although made for the express purpose of revoking such clause. It was held that, under the statute, no obliteration could be effective, unless it operated to altogether destroy the whole will. A contrary doctrine would, the court said, produce all the mischiefs intended to be prevented by the observance of formalities in the execution of wills, and would be “fatal to the authority of documents, subversive of the rights of parties, and would completely abrogate the statute.”
In Eschbach v. Collins, 61 Md. 478, this question is discussed ably by the Maryland Court of Appeals. The statute in that State, like that in England, allows the whole will, “or any clause thereof,” to be revoked in the same modes permitted by our statute. The testator erased or obliterated the names of two of his sons, wherever they occurred in his will, by drawing a line through them with a pen, but leaving the names legible — such erasures operating to confer estates in fee simple on all the sons by destroying the life-estates created. It was held, that while, under the express words of the statute, it was permissible for a testator to revoke his will pro tanto, by obliterating one or more clauses, where the effect of such erasure was simply to expunge a legacy or devise,'without making a different disposition of the estate, yet that any alterations in a will by interlineation or obliteration, whereby it was sought to make such different disposition of devised property, by creating new rights and interests in others, would be void, unless authenticated, as a neAV will or codicil, in the manner prescribed by statute. The attempted obliterations being inoperative, the will, it was said,
The following conclusions may be deduced from these views:
(1.) The declarations of the testator, both contemporaneous with; and subsequent to his act of obliterating the name of W. H. Law from his will, were admissible in evidence to explain his intention.
(2.) Whether he thereby intended to revoke the whole will, or only that pari of it which made W. H. Law one of the legatees, is a question for the determination of the jury,^ under the facts in this case.
(3.) If the erasure was made with intention to revoke the whole will, and was so material, when explained by the testator’s declarations, as to justify the inference of an intention to revoke the entire instrument, it would be effectual for this purpose.
(4.) If the intention was only to revoke the will pro tanio, so as to expunge the name of W. H. Law as a legatee under it, it was inoperative for this purpose.
(5.) All alterations or revocations of any part, or any clause of a properly executed will, must be made, not by burning, tearing, cancelling, or obliterating, but only by a new will, or codicil, properly subscribed by the testator, and attested by at least two subscribing witnesses, in the mode prescribed by the statute.
The judgment of the Circuit Court, reversing the judgment of the Probate Court, and remanding the cause to that court for a new trial, is affirmed.