1 Rob. 347 | Va. | 1842
The spirit of our statute law in regard to the making and revocation of wills, is, to restrain parol testimony on the subject within the narrowest practicable limits. Hence the solemnities of writing, signature, attestation. Revocations by cancel-ling or destroying the instrument arise naturally from the custody, control and dominion of the testator. Prescribed formalities in regard to them would be of little value, and would involve the necessity, in the event of nonobservance, of resorting to parol testimony for the purpose of setting up and establishing the ruined instrument; one of the very evils intended to be guarded against. Still, however, the statutes are not without their efficacy in relation to these as well as the other modes of revocation, by excluding the evidence of witnesses as to the conduct and declarations of the testator, except so far as they bear upon the permitted acts of revocation. This is obvious from the consideration, that, as nothing can supply the want of the acts of revocation, so nothing can extend them beyond the legal import and effect of the acts themselves. The act, however, of cancellation or destruction necessarily presents enquiries calling for or permitting the examination of parol proofs to a very considerable extent. The mere act most usually establishes itself; for if a will which had been executed by the testator, and retained in his custody, be found cancelled at his death, or after diligent enquiry cannot be found at all, the legal presumption
In the case before us, it was physically impossible that the act of destruction in question, the burning of the codicil, could have been directed against the will, inasmuch as the will was not present but in a different custody. And yet the court instructed the jury, that if the testator intended, at the time of destroying the codicil, thereby to revoke the will, in that case the destruction of the codicil was a revocation of both the will and the codicil. If this be correct, it must be either
The argument of the appellees’ counsel is, that the question of revocation is in some degree a question of intention,- and the act of cancellation or destruction an equivocal act, which must be done with an intention to revoke; and therefore, that though a partial cancellation or destruction is prima facie a partial revocation,, yet by the intent of the party it may be extended to a total revocation. The premises are true, but do not warrant the conclusion. The intent to revoke must concur with.the act of revocation, but Cannot go beyond it, being limited by law to the act itself. We must not confound the intent to do the physical act of cancellation, or destruction, with the. intent, to produce thereby the legal effect of revocation. When the intent to do the physical act concurs with the act itself, it then becomes an act of revocation ; and when the intent to revoke concurs with the act of revocation, it then becomes
In this view of the subject, it avails the learned counsel nothing to prove, from reason or authority, that a codicil is to be taken as a part of the will j for still it is a case of partial revocation. The argument is, however, stronger against total revocation, where the act of cancellation or destruction is applied to the codicil, than where it is applied to a part only of the will; for the part of the will cancelled or obliterated may be essential to the validity of the rest, which can never be as regards the codicil relatively to the will. The codicil is a part of the will for construction and testamentary disposition, but not for execution, nor for revocation, when that is applied to the codicil. It is a branch not essential to the existence of the tree, but which can have itself no distinct vitality.
In my opinion, therefore, the instruction in question violates both the letter and the spirit of the statute, and is fraught with all the evils of parol revocations. There can be no stronger illustration of the mischievous effects of such a doctrine than is furnished by this very case, which was made to turn upon the hearsay testimonj' of two witnesses to prove admissions, by one of the devisees, of expressions used by the testator, which derive their whole force from the very looseness of the terms employed.
The attempt to sustain this doctrine by authority has completely failed. No case has been produced in which it has been held that a revocation of a codicil, with whatever intent or in whatever mode, has operated as a revocation of the will. The case cited of
Another instruction given by the court on the trial of the issue was, that if the jury believed from the evidence, that the testator directed the will to be destroyed, and thought that it was destroyed as requested, then the will, so far as it related to the personal estate, was revoked in law, although it might not in point of fact have been destroyed. As this instruction, if erroneous, ought not to be repeated on another trial of the issue, I think it proper to express my opinion upon it. The proposition which in its broad terms it announces, is, that if the testator directed the will to be destroyed, whether inprcesenti or in futuro, and whether the will was present or absent at the time, and believed, whether then or at a subsequent period, that it was destroyed, then the will, as relates to the personal estate, was revoked, though not in point of fact destroyed. I need not consider the proposition thus stated, as I do not believe the court intended to be so understood, and as the counsel for the appellees have chosen to construe the instruction in reference to the instructions which had already been
And here again this case strongly illustrates the danger of parol revocations of wills. This part of the case was made to turn upon the testator’s unfounded belief, supposed- to be proved by the hearsay evidence of loose expressions above alluded to, that the will was
Without considering the objection made by the appellants’ counsel to the evidence, given without opposition on the trial, of the admissions made by mr. Mason, one of the devisees, in regard to statements of the testator in conversation with him, I am of opinion that the judge of the circuit court, sitting as chancellor, ought not to have been satisfied with the verdict of the jury, because of the misdirections above stated; and therefore that the decree ought to be reversed, and the cause remanded.
It remains to enquire what further proceedings ought to be had in the cause. The appellants’ counsel contend that the bill should be dismissed, on two distinct grounds. One is that the bill does not state such facts as, admitting them to be true, are sufficient in law 1o make the will invalid; it merely, by a sweeping allegation, charging that the paper propounded is not the last will and testament of the alleged testator. My present impression is that this objection could only be properly taken by a demurrer to the bill; but I will briefly consider it upon its merits.
The question of devisavit vel non is a common law question, and in Virginia most usually a mere question of probat. After a will has been admitted to record, it cannot, with us, be controverted incidentally; as it frequently is in the english common law courts, and sometimes (through the intervention of a jury) in their court of chancery, in consequence of the want of a court of probat in relation to wills of real estate. The
It only remains for me to notice the other objection to the bill, that some of the plaintiffs, by accepting their legacies and devises under the will, have precluded themselves from disputing its validity, and that the other plaintiffs, having joined with them those so precluded, are not entitled to sue. This objection comes loo late (Dickenson v. Davis &c. 2 Leigh 407.) not having been made by plea, nor even relied upou as a bar by way of answer. But it could have availed nothing in any form ; the correct rule, as I conceive, being that of the ecclesiastical courts, that the acquiescence of the next of kin in the grant of a probat in common form (which corresponds with our ex parte probat), even though they receive legacies as due them under the will, does not preclude them from calling for proof in
My opinion therefore is, that if the cause be remanded, it should be with directions to set aside the verdict of the jury, and award a new trial of the issue, on which new trial the instructions given at the former trial on the motion of the plaintiffs are not to be repeated.
The other judges concurring, the opinion of the court of appeals was declared to be, that the instructions given by the circuit court to the jury, upon the motion of the appellees, on the trial of the issue of devisavit vel non, were erroneous; and therefore that the judge of that court, sitting as chancellor, ought not to have been satisfied with the verdict of the jury. The decree was reversed with costs, and the cause remanded to the circuit court, with directions to award a new trial of the issue, on which new trial the instructions aforesaid were not to be repeated.