106 Ky. 646 | Ky. Ct. App. | 1899
delivered the opinion of the court.
This is an appeal from a judgment of the Bullitt Circuit Court refusing to probate a certain paper as the last will of G. N. Sanders.
The facts in reference to the execution of the paper are as follows: In December, 1892, decedent, G. N. Sanders, had one of his neighbors, Mr. Gilmore, write his will at his dictation,- which Sanders subsequently signed in the presence of S. D. Brooks and Wilson Summers, who attested same at his instance and request; and this will was delivered by Sanders to Summers, to be kept until his (Sanders’) death. Some two years later, Sanders took the will out of the possession of Summers, saying that he wished to make some change in it. Shortly after-wards he again sent for Gilmore, and notified him of his purpose to change the will; and, after some talk as to the best way to do it, Sanders directed Gilmore to cut his name
He never called upon his neighbors to attest the will after the addition had been put to it, and, upon the offer to probate it, the court rejected the will on the ground that the cutting off the name of testator and the .subscribing witnesses therefrom by testator’s direction, and in his presence, was a revocation thereof; and, the paper never having thereafter been re-executed as required by law, it was adjudged that it was not entitled to be probated as the last will of decedent.
W'e are asked, upon this appeal, to probate that part of the will which remained after the signatures of testator and the attesting witnesses were cut off, upon the ground that the cutting of these signatures from the will
Section 4833 of the Kentucky Statutes provides that “No will, or codicil, or any part thereof, shall be revoked unless under the preceding section, or by - a subsequent will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed, or by tbe testator, or some person in his presence, and by his direction, cutting', tearing, obliterating, canceling or destroying the same, or the signature thereto, with the intent to revoke.”
This provision of our statute is a substantial re-enactment of the English statute of frauds (St. 29 Car. II. c. 3, sec. 6), and of the wills act of Victoria (St. 1 Viet., c. 26, sec. 20); and in construing the latter in the case of Clarke v. Scripps, 2 Rob., 567, the court said: “It is to be observed that the 'burning, tearing or otherwise destroying’ the instrument must be done with the intention to revoke. It is not the mere manual operation of tearing the instrument or the act of throwing it in the fire, or of destroying if- by other means, which will satisfy the requisites of the law. The act must be accompanied with the intention of revoking. There must be the animus as well as the act. Both must concur in order to constitute a legal revocation.”
And in Giles v. Warren, L. R. 2, Prob. & Div., 401, a testator, under the false impression that his will was invalid, tore it up. Immediately afterward, on reconsideration, he collected the pieces, and placed them together among his papers of importance, and preserved them until his death. It was held that, as the act done was not accompanied by an intention to revoke a valid will, it was
In the case of Doe v. Harris, 6 Adol. & E., 209, it was said:
“There can be no doubt that, if the name of the testator had been burnt or torn out, the revocation would have been as complete as. if the will had been torn in twenty pieces. If this were not the case, it would lead to many absurd consequences.”
Sir H. Jenner, in Hobbs v. Knight, 1 Curt., 779, said:
“The question, then, comes to this: Whether this be or be not a destruction of the will, I consider the name of the testator to be essential to the existence of a will, and that, if that name be removed, the essential part of the will is removed, and the will destroyed.”
In Semmes v. Semmes, 7 Har. & J., 388, it was held that:
*651 “A will deliberately canceled without accident or mistake is revoked, though the testator afterwards intended to make a new will, but omits to do so.”
In Youse v. Forman, 5 Bush, 337, it is said:
“If the testator cut or tore off the signature to this paper [his will], the law presumes it to have been done with the intent to revoke, but this intent may be fortified or rebutted by extrinsic evidence.”
It is apparent that the controlling fact to be ascertained in passing upon the question of revocation is, what was the intention of deceased in having the signatures of himself and the attesting witnesses clipped from the paper? The signature is certainly an essential part of the will. Without it there can be no will, and, if it was the purpose of deceased to revoke his will, no more effectual means of doing so could have been resorted to, short of the total destruction of the paper. The evidence of such intention is fortified by the fact that, in addition to cutting off the signatures,he made a number of important and material changes in the disposition of his property, both by adding other clauses, and by erasing provisions previously inserted. It is certain that the paper sought to be probated is essentially different from that from which the signatures were clipped, and this is in itself persuasive of the intention of deceased to revoke the other; and that he thought the old will was revoked is conclusively shown by the fact that he informed the draftsman, after the additions had been made, that he would have the new document properly attested when the witnesses came out. After a careful consideration of all the facts and circumstances connected with the mutilation of the old will, we are of the opinion that it was done by deceased with the intention of revoking it, and, as the new will has never been re