68 Neb. 463 | Neb. | 1903
The general purpose and nature of this controversy are stated in the opinion of the court on another branch of the cause. Williams v. Miles, 63 Neb. 859. It will be sufficient to say, for the purposes of the present opinion, that the decree appealed from was rendered in a suit begun originally in the county court of Richardson county for the purpose, among other things, of having an order admitting a certain instrument, to probate as the last will of Stephen B. Miles vacated and set aside. Stephen B. Miles died at Falls City, in this state, in 1898, leaving surviving him Joseph H. Miles, one of the appellees, and Samuel A. Miles, one of the appellants, his sons, and a number of descendants of two deceased daughters. In the year 1888, he had made a will at Rulo in Richardson county, in which he gave substantially his entire estate, amounting at the time of his death to upwards of $1,000,-000, to Joseph H. Miles, excluding Samuel A. Miles, the issue of his two daughters, and many others who had claims upon his bounty. During the period intervening between the execution of this will and his death, he had ceased to take an active hand in business, and lived mostly at hotels in St. Louis, Missouri, or at Falls City. After his death, Joseph H. Miles, who was present when the will known as the Rulo will was executed, in 1888, and was acquainted with its contents, made an extensive search in every place in which papers of the deceased were known to be or were likely to be found, for the purpose of ascertaining whether there was a will. As a result of this search, he testifies that he found the Rulo will in an unlocked valise in a room in a hotel at Falls City, which had been occupied by the deceased, under circumstances which, to say the least, are somewhat extraordinary. He presented the will to the county court of Richardson county and procured its probate. The appellants’ case is that in 1897 the testator executed a new will at a hotel in St. Louis, where he was in the habit of spending his winters, which
The evidence with reference to the execution of what may be called the St. Louis will consists of the testimony of two witnesses, the manager and clerk of the hotel in St. Louis, who appear to have been well acquainted with the testator. They testify that within a few days after a conversation which one of them had with the testator regarding his will, the testator stated that he was going to make Ids will at once, and apparently went out of the hotel for that purpose; that several hours thereafter he came to the office in the hotel and stated that he had made a will; that either the next day or within two or three days,, they were summoned to the testator’s room, where they found him with some document drawn upon legal-cap paper before him; that the testator said to them, “Gentlemen, I want you to witness the signature of my will”; and that he thereupon took a pen, and, saying “This is my last will and I want you to witness the signature to it,” signed his name, and procured the witnesses to subscribe theirs also. The testimony of these witnesses is very clear and circumstantial as to the execution of the instrument, but they do not claim to know anything of what the paper contained, further than the statement' of the testator that it was his will. There is, however, not a little evidence as to declarations of the testator tending ■to show that he had made dispositions of his property inconsistent with the terms of the Rulo will, and there is
On behalf of the appellees it is urged that, assuming the St. Louis will has been proved, since the testimony by which it is shown establishes that the testator retained custody of or had ready access to it, and it could not be found at his death, we must take it to have been destroyed by the testator with the purpose of revoking it, and that such revocation, in the absence of a contrary statutory provision, and by virtue of chapter 15a, Compiled Statutes (Annotated Statutes, 6950) .would have the effect of reviving the prior will. Each of these propositions requires some qualification. Where a will is shown to have been made and left in the custody of the testator, if it can not be found after his death, the presumption is that he destroyed it animo revocandi. 1 Jarman, Wills (5th ed.), *133; Boyle v. Boyle, 158 Ill. 228, 42 N. E. 140; Collyer v. Collyer, 110 N. Y. 481; Behrens v. Behrens, 47 Ohio St. 323, 25 N E. 209; Gardner v. Gardner, 177 Pa. St. 218, 35 Atl. 558. If the will is traced out of the testator’s custody, on the other hand, the burden is on him who asserts a revocation to show that it came once more under the testator’s control, or Avas destroyed by his direction. 1 Jarman, Wills, *133. In such cases if the person into whose hands the Avill is traced had an interest in procuring its destruction, some courts have suggested that they would go very far in presumptions as to the contents of the lost Avill and the mode of its disappearance. Chisholm v. Ben, 7 B. Mon. (Ky.) 408. We need not examine this subject in the case at bar. Although there is some circumstantial evidence which might create a suspicion that the St. Louis will came into the bank at Falls City, where Joseph H. Miles Avould have had access to it, we do not think there is enough to call for application of the authorities referred to, even if Ave were prepared to follow them. Clark v. Turner, 50 Neb. 290, 299; Collyer v. Collyer, 110 N. Y.
Our statute of wills follows the Massachusetts act of which, as to execution and revocation, is modeled on the statue of frauds. We have not adopted a modern
What is the meaning of the term “common law of England,” as used in chapter 15®, Compiled Statutes? Does it mean the common law as it stood at the time of the Declaration of Independence, or as it stood when our statute was enacted, or are we to understand the common-law system, in its entirety, including all judicial improvements and modifications in this country and in England, to the present time, so far as applicable to our conditions? We can not think, and Ave do not believe this court has ever understood, that the legislature intended to petrify the common law, as embodied in judicial decisions at any one time, and set it up in such inflexible form as a rule of decision. The theory of our system is that .the laAV consists, not in the actual rules enforced by decisions of the courts at any one time, but the principles from which those rules flow; that old principles'are applied to neAV cases, and the rules resulting from such application are modified from time to time as changed conditions and new states of fact require. Rensselaer Glass Factory v. Reid, 5 Cow. (N. Y.) 587. “We may look to American as well as English books, and to American as well as English jurists, to ascertain AAdiat this law is, for neither the opinions nor precedents of judges can be said, with strict propriety, to be the law — they are only evidence of law.” Forbes v. Scannell, 13 Cal. 242, 285. On this ground it was held, in Sayward v. Carlson, 1 Wash. 29, 23 Pac. 830, that a statutory provision in Washington, making the common law of England the rule of decision in all courts, did not confine the courts to the decisions of the English courts, and of those American courts Avhich have followed them closely, for the interpretation of the law. Such has been the understanding of this court from the beginning. What Sir Frederick Pollock has called
If, as between the rule of the old common-law courts and the rule of the English ecclesiastical courts, we are not required by statute to follow the former, Ave think the latter, on principle, greatly to be preferred; and it has the support of the weight of recent authority in America. A distinction was suggested at an early period between a will Avhich revokes the former will expressly, and one which so operates by implication only. Leaving the question somewhat in doubt as to the latter case, the rule has been generally and vigorously assailed as to the former. 1 Powell, Devises, 528; 4 Kent, Commentaries, 531; Randolph & Talcott’s note to 1 Jarman, Wills, *193; Barksdale v. Hopkins, 23 Ga. 332; Beaumont v. Keim, 50 Mo. 28; Colvin v. Warford, 20 Md. 357; Scott v. Fink, 45 Mich. 241; Cheever v. North, 106 Mich. 390, 64 N. W. 455. But the courts are by no means agreed on this distinction, and it has been considered as having no more force than to affect the presumption, if any there is. Pickens v. Davis, 134 Mass. 252, 254; Schouler, Wills, sec. 413. A few jurisdictions adhere to the rule as stated by Lord Mansfield. Taylor v. Taylor, 2 Nott & McC. (S. Car.) 482; Randall v. Beatty, 31 N. J. Eq. 643; Peck’s Appeal, 50 Conn. 562. But the strong tendency in the United States is to follow the rule of the English ecclesiastical courts, and hold that if the testator destroys a subsequent will,
It follows that we are brought inevitably to the questions whether execution of the St. Louis will has been shown sufficiently, and, if so, whether the evidence shows sufficiently that it revoked the former will, expressly or by implication. Before taking up these questions, however, certain preliminary objections going to the mode of proof must be disposed of.
It is urged on behalf of the appellees that it is not sufficient to show a subsequent wall revoking the instrument probated, but that the contents of such will must be established ; that declarations of the testator are not admissible to prove the later will; that persons who would take as heirs or next of kin in case of intestacy, or as beneficiaries under the subsequent will, are not. competent witnesses to transactions and conversations with the deceased; and
Without going Over the details, we may say that the evidence produces a strong conviction that a Avill of some sort was made at St. Louis. There is not only the testimony of the -two subscribing witnesses, but a very considerable mass of circumstantial evidence. Moreover, the declarations of the testator are well authenticated and circumstantial. Taking all these matters into account, and bearing in mind that the apparent injustice of the disposition made in the instrument admitted to probate, the suspicious character of many things connected Avitli the finding of the Rulo will, and the disposition of the testator
/ A subsequént will may have the effect of revoking a prior will, either by reason of an express clause of revocation, or of an inconsistent disposition of the testator’s property. 1 Jarman, Wills, *172. Hence, to show that the Rulo will was superseded, it would be necessary to prove that the later instrument revoked it expressly, or else to show, that the contents of the later instrument Avere such as to revoke it by implication. There is no proof of .an express revocation clause. To show revocation by implication requires more detailed evidence as to the contents of the lost will, for, unless, the subsequent Avill expressly revokes the former one, such former will is only revoked so far as it is inconsistent with the later. 1 Jarman, Wills, *175. The governing principle is the intention of the testator. It does not follow from the fact of a new wall that full and entire revocation was intended; the purpose may have been to make supplemental provisions, consistent with the former will in whole or in part, to dispose of other property, or to amend and alter the prior dispositions only. Hence a complete revocation by implication will not result unless the general tenor of the later will shows clearly that the testator so intended, or the two instrument's are so plainly inconsistent as to be incapable of standing together. Brant v. Wilson, 8 Cow. (N. Y.) 56; Smith v. McChesney, 15 N. J. Eq. 359; In re Venable’s
In view of the principles last discussed, we' think the appellants have failed to show sufficiently that the Rulo will was reA-oked. Declarations of the testator alone Avill not suffice to sIioav that the St. Louis Avill had that effect by implication, since, Avithout showing the contents of that will, such a revocation can not be established. But, as held in Clark v. Turner, supra, the testimony of the subscribing AAltnesses in this case, exce.pt so far as they testify that the testator signed a paper, and they witnessed it in his presence and at his request, amounts only to evidence of his declaration that the paper Avas his Avill. The other testimony consists of declarations of the testator as to Avhat he had done for or had left supposed beneficiaries of the lost will, or what Avould be their circumstances after his death. Beyond the declarations of the testator, which may supplement but can not entirely replace more direct proof, there is no such clear, unequivocal and convincing evidence of the contents of the will as the
We therefore recommend that the decree be affirmed.
By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is
Affirmed.
On motion to modify former opinion, the follOAving opinion was filed July 3, 1903. Motion denied:
Pound, C.
The greater portion of the brief and of the oral argument in support of this motion is based upon a failure to distinguish betAveen the competency and admissibility of evidence, on the one hand, and its probative force or sufficiency to establish tlie fact in controversy, on the other hand. We did not state that a Avill could be shoAvn solely by declarations of the testator. What we did say, and now adhere to, is quite another proposition, namely, that declarations of the testator are competent evidence on an issue whether a Avill Avas made. In Clark v. Turner, 50 Neb. 290, 298, this court had said already: “We think
App. llees complain of a number of statements made incido: tally or arguendo in the course of the opinion. In particular they object to certain remarks which conceded the suspicious or extraordinary character of some of the circumstances urged upon us by appellant. We held that the evidence sustained the contentions of appellees on these points. But it does not appear wherein there was any impropriety in recognizing the force of the matters urged upon our attention by appellants. In justice to them we could do no less than state their position and concede the full weight of their case. This is one of the incidents of litigation. To suppress these features of the case in deference to the feelings of one party would be to deprive the other of his right to know precisely how and why he had failed. It is contended that some of the remarks in question may prejudice other or further litigation between the same parties. Here, again, however, were we to remain silent entirely, the appellants would have just ground of complaint. If we merely recommended a judgment of affirmance, without stating fully the' views we entertained, by reason of which we were moved to make such a recommendation, the grounds thereof would be matter of speculation and conjecture, and erroneous constructions of the judgment might prejudice appellants much more than the appellees may be injured by any incidental Statements in the opinion. Moreover, no such effects as
We therefore recommend that the motion be denied.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the motion be denied.
Rehearing denied.