37 Vt. 356 | Vt. | 1864
The main question in this case is, whether the will was revoked by the act of the testator, in writing what he did on the second page of the instrument.
The statute prescribes the several and only modes in which a will, duly executed, may be revoked, viz : 1st, by some will, codicil or other writing. 2d, by burning, tearing, cancelling or obliterating. It is clear, and is conceded, that this will is not revoked by either of the first of said modes ; nor by either of the other modes, unless it be by cancelling. That is a mode by itself,' different and distinct from burning or obliterating, though obliteration may in some cases be an act of cancelling. In the present case there is no obliteration. So the only question is, was the act of the testator a cancelling, within the meaning and intent of the statute ?
We regard it as a settled doctrine of the interpretation of statutes, that when an English statute is enacted in this state, if it had received a judicial interpretation in England prior to its enactment here, it is to be taken that the language is used in our statutes in the sense given to it by the adjudications in England, unless there is some other sense impressed upon it by attendant provisions of the statute thus enacted. But if it had received no such interpretation, it stands for interpretation here the same as if it had been first enacted here. Adjudications in England, made since such enactment here, have not the force of authority, as to the sense of the language
It is plain that the object of the statute 29 Car. II. is the same as that for which our similar statute was enacted; and, in the matter of wills, to provide ample security against their revocation being effectuated, unless by means insuring the utmost certainty that it was the intent of the testator to revoke what would otherwise stand for, and be effectual as, a will disposing of his worldly effects.
To this intent, the provisions in this behalf have been made. The class of acts of revocation,^>f which cancelling constitutes one mode, contemplates something to be done to the instrument itself, showing, or tending to show, that,- by such act, the testator designed to make an end of it as his will; and each of the modes prescribed was designed to be equally effectual in that respect. If the document should be entirely burned up, or entirely obliterated, or torn into scraps, or covered over with closely drawn cross lines, there would be no doubt as to the intent of the testator. But it has been held not to be necessary to go to that extent in any of the modes, in order to answer the requirements of the statute ; and that the slightest degree of either mode, provided it appear even by resort to other evidence, that the act was done with the intent to have it constitute a revocation, is effectual as such revocation. Accordingly it has been decided that the slightest burning or tearing of the material on which the will was written, ev.en though none of the script should be destroyed or effaced, — that the erasure of a single word, or the drawing of a slight line across the face of the script, partaking of the character of the act prescribed by the statute, if it appear to have been done in the accomplishment of such act, effectuates a revocation.
Now it is obvious, from the general current of the cases early and late, that the leading idea is, that the testator must perform some one of the prescribed acts upon the instrument itself, so that, when produced, it shall bear the mark of such act. What amounts to burning, to tearing, to obliterating, is not the subject of question. But what amount? to cancelling, — how, with r?ferei}ce íq the text of the
The Latin verb, from which the term cancel is derived, means to make lattice work, and the corresponding noun in Latin, in the plural, cancelli, signifies lattice work ; and when' applied to marks, means marks made in the form of lattice work. How this term came to be applied to marks made upon written instruments, for the purpose of destroying their validity, is obvious both from general and judicial history, hot only as taught by the books, but as derived from observation. To draw cross lines over the face of a written instrument has been, and is, a common mode of showing the intent, thereby, to make an end of it as an instrument in force. In earlier times, when the ability to write was possessed by very few, the great mass of persons of all grades from the highest lord to the lowest peasant, could manifest their intent, with pen and ink, only by unlettered marks. While they would be dependent on the few skilled in the art, to draw their instruments of contract in making disposition of their property, they could and did resort to various modes, by which, without clerkly aid, to make an end of their validity.
From the fact that cross marks were so easily made, and, when made upon the face of a written instrument, were so significant that, thereby, the maker of them designed to put an end to the continuing validity of the instrument, this mode was recognized and adopted into the statute, in common with tearing, burning and obliterating, as one by which wills might be revoked. In some instances this mode might be preferable to either of the others, as when it should be desirable to preserve the legibility of the entire instrument, which might not happen as the result of burning, tearing or obliterating. While, therefore, a cqmmon and customary mode of manifesting the intent to abrogate theAnstrumcuf, by drawing cross lines over the face of it, gave rise to tlie<g-áé of the term cancel,- still the entire judicial history of the subjept'sho'ws that that manner of marking am instrument is by no megns essential jn order to answer to the full force gnd effect of the term in its legal senge. The nef result qf
In the present case the act of the testator was done, not only upon the paper on which the will was written, but upon such a part of it as always to-go with-that part of the will which contained the disposition of the .property, — not indeed on the face, but on the back of such disposition.. It is obvious that the act itself was designed to constitute a revocation by cancelling. This is not a mere memorandum or declaration, which, as such, operates a legal effect by force of the terms, but it wras the performing of an act upon the instrument itself, .which act operates the legal effect. If cross lines had been drawn over the face of the writing of the will, they would have been . effectual, because they would have constituted an act done to the instrument, showing the intent of the testator, by that act, to destroy the validity of. it. Instead of thus drawing lines, he equally performed an act to the substance of the instrument, and as insepar-* able from the written text as cross lines over its face, showing, with even clearer certainty, the intent, by that act, to destroy its validity. Instead of leaving the significance of informal marks to be fixed by the location they occupy, he formed the marks into letters and words expressive of their significance, and as effectually placed them upon' the instrument, as if they had been made upon the face of the script of the will. If he had drawn a slight mark from the top to the bottom of the writing, though that would not have been cancelli, within the etymological and primary meaning of the term, still it is conceded that it would have been a cancelling of the will, if done with that intent, within the legal meaning of that term. We think that writing upon the will, as was done in this case, as nearly answers to the primary sense of that term, as such mark would, and, having regard to the ground on which effect is given to an act of cancellation, such writing answers every reason and requisite of the law.
The case of Lewis v. Lewis, 2 W. & Serg. 455, comes nearer to a position of conflict with the view we hol’d, than any one to which
Several cases were cited in the argument, in which there had been erasures or interlineations, or both, and it was held that the wills were not thereby revoked, because it did not appear, on the one hand, to have been the intention of the testator to have the act constitute a ‘cancelling, or, on the other, if so intended, that the act was completed by the testator having done all that ho designed to do as constituting such act of cancelling. Such are Winsor et al. v. Pratt et als., 6 E. C. L. 299; McPherson v. Clark, 3 Bradf. 95 ; Martins v. Gardner, 8 Simons, 73 ; Clark v. Smith, 34 Barb. 140.
- The ground and reason of those and similar decisions are well stated, and cases referred to in Redf. on Wills, 315 ; also in 2 Am. Lead. Cases, 692, where it is said, “ Although interlineations, intended to vary the sense of the will, and not to destroy it, cannot, in themselves, amount to a cancellation, there is no room for doubt, that, when taken in connection with actual erasures, they may go to make up the proof of a change of disposing purpose, and show a total or partial revocation of the instrument.” And this is fully sustained by the authorities cited.
There is a class of cases of revocation by burning, tearing or ob-
Now, as before intimated, the acts of burning and tearing in the cases cited, are as far from answering to the most natural import of the words used in the statute, as the act in the present case is from answering to the primary idea of making lattice work, or to the less restricted idea of drawing a cross, or even a single mark, on the face of the writing, in order to constitute cancelling,
I On the whole, the true legal idea seems to be well expressed in 2 I Am. Lead. Cases, 680, as follows : “All that is necessary to a revocation is an absolute revoking intention, manifested by any act, however slight in its nature, which can fairly be considered as a tearing, burning, cancelling, or obliterating, within the meaning of the statute of frauds, and the various legislative enactments which have been based upon it;” and in Williams on Executors, 110, that “the principle appears to have been established, that if the intention to revoke is apparent, an act of destruction or cancellation should carry such intention into effect, although not literally an effectual destruction or cancellation, provided the testator had completed all he designed to do for that purpose.”
As to the extent to which such act of revocation must be done in order to be effectual, perhaps Mr. Justice Coleridge, in Reed, v. Harris, supra, put as proper a general formulary as is to be found, or as can well be framed, — thus : “ The question is put whether the will must be destroyed wholly, or to what extent. It is hardly necessary to say; but. there must be such an injury, with intent to revoke, as destroys the entirety of the will; because it may then be said that
Holding-this'to be sufficiently, in character, an act of cancelling, we proceed to remark, that the intent is so decisively manifested by it, as to give it full effect as an act of revocation. And we regard our brother Pierpoint as having most aptly expressed the true legal idea, when he said in his charge to the jury, that “ in the writing may be combined both an act and a declaration of intention.”
Upon the face- of the will, when produced, it was, in the eve of the law, cancelled ; and the court would have been warranted in so ruling. This being so, the evidence that was received of the sayings of the testator, became immaterial, whether made at the time of the act of cancelling, or subsequently thereto. Hence it becomes unnecessary to decide whether the testimony, as to his sayings made subsequently to that act, would have been admissible as evidence of his intent in doing it, if it had been necessary for the defendant to show, aliunde the instrument, that the act was done with the intent to revoke the will by cancelling.
Some of the members of the court think the proponent had given occasion for the introduction of this evidence, by the character of the evidence which she had introduced in the opening of her case.
The only remaining question is, as to the republication claimed by the proponent to have been made by sayings of the testator a few days before his death.
The will was revoked by the act of cancelling. The law of this state, in cases like the present, recognizes as valid such wills as are made in the mode prescribed by the statute, which statute prescribes the only modes in which they may be revoked. When thus revoked, it would seem quite incongruous that the instrument, could be restored to its original vitality and force by mere words, with
In cases like the present, we have no wills at, or by force of common or ecclesiastical law, but only by statute. The substance of the 5th section of the statute of frauds, 29 Car. II. ch. 3, was enacted as early as 1787 in this state ; and in 1821 the full force of that section, as also of the 6th section, was extended to personal as well as to real estate, and the same has been substantially the law of this state ever since. Slade’s St. ch. 44, §§ 17, 18 ; G. S. ch. 49, §§ 6,7.
The case before us does not bring in question the effect of executing a codicil with due formalities, after the act of revocation, or of another testamentary instrument, referring to, and designed to restore the revoked instrument; nor does it bring in question other acts done to or upon the instrument itself subsequently to the act of revocation; nor does it involve, or call for any discussion of the subject in the light of the cases decided in other states in which the English law as to wills has existed to a greater or less extent. We are therefore relieved from the complications and conflicts which the books show to have often troubled other courts ; and for the additional reason that the evidence, upon which the point as to republication is predicated, could only bear upon the question of the intent of the testator in doing the act of revocation. The proponent had the full benefit of that evidence in that view, whether properly or not.
In the discussion and decision of this case, we have .given no consideration to the act or words of the testator, in what he wrote upon the outside of the folded will under the filing.
The judgment is affirmed.