176 Mass. 253 | Mass. | 1900
This is a petition to the Probate Court for a revocation of a decree allowing the will and codicil of Alford B. Wilton, and for an allowance of them with certain portions of the codicil stricken out, as having been improperly inserted after the paper was executed. The' material portions of the codicil are as follows : “ Whereas by my last will and testament dated the eleventh day of April, 1888, in article tenth I gave to my sons and grandchildren the income of rest and residue of my property, after paying my debts and legacies, to be equally divided between them. I do hereby revoke the said legacy, and instead thereof I give and bequeath the income of the said rest and residue of my property as follows : One eighth of the same to my son John George S. Wilton, the other seven eighths to my son Augustus W. Wilton, and my grandchildren, to be divided equally between them. I also give and bequeath to Cornelia E. Lawrence the sum of five hundred dollars.” The words “ income of ” in the first sentence, and the words “ income of the ” in the second sentence, are written in the margin before the words “rest” and “said,” respectively, each of which latter words is" at the beginning of a line. These words in the margin and the words “E. Lawrence” in the second clause are in the handwriting of one Knapp, the scrivener who wrote the codicil and who had previously written the will, and are in a different ink from the rest of the codicil and written by a different pen. Knapp testified that" the words in question were written before
The appellant called Knapp as a witness, and then offered evidence of statements made by him tending to contradict his testimony, without previously calling his attention to the statements. This evidence was rightly excluded. Pub. Sts. c. 169, § 22. Ryerson v. Alington, 102 Mass. 526. Batchelder v.
The plaintiff asked the court to rule, “ that the words in the margin being unnoted, and being in different ink, the presumption of law in this case is that they were added after execution.” There is no presumption of law in a case of this kind as to the time when the disputed words were written. The question is one of fact to be determined on all the evidence. Ely v. Ely, 6 Gray, 439. The burden of proof is on a party presenting a will to show that alterations or interlineations in it were made before its execution, and unless there is something in the nature of them, as applied to other parts of the writing, or unless there is other evidence to show that they were a part of the will when it was executed, they will be rejected for want of proof. The opportunities for making alterations in a will are often so great, and the requirement of the statute that a will shall not take effect unless it is executed with due formality is so strict, that apparent alterations in a will are looked upon with some suspicion. The validity of changed portions is not assumed, but there may be evidence to establish it; and this evidence may be found in the instrument itself, or may come from outside of it. Greville v. Tylee, 7 Moore P. C. 320. Doe v. Palmer, 16 Q. B. 747. In re Adamson, L. R 3 P. & D. 253. Williams v. Ashton, 1 Johns. & H. 115. In re Cadge, L. R 1 P. & D. 543. Birch v. Birch, 1 Rob. 675. In re Swindin, 2 Rob. 192. In re Birt, L. R. 2 P. & D. 214. In re Penniman’s Will, 20 Minn. 245.
In the case at bar, the codicil with the disputed xvords in it correctly describes the bequest in the original will, and conforms to the will. If the words were omitted, a comparison of the codicil with the will would show a mistake apparent on the face of the paper. This fact tends to control the ordinary inference against a changed portion of a codicil. Anything in the paper itself, as well as in the evidence from outside, which makes it
There is another consideration which justifies the refusal to give the ruling. The request was to rule that there was a presumption of law in this case. Now this ■ case is not one in which a codicil is presented for probate. It is one in which a decree, of a court allowing a will and codicil remained unchallenged for more than ten years before this petition was filed. The petitioner assumes the burden of showing that the decree is erroneous. All presumptions are in favor of the decree, and it cannot be set aside without clear proof. It is plain that “ in this case ” there is no presumption of law against the validity of the disputed words in the codicil.
jExceptions overruled,.