Hoitt v. Hoitt

Blodgett, J. No express revocation appears in this case. The will of the testator,' executed in accordance with the statute formalities, has not been revoked by any subsequent “ will or codicil,, or by some writing executed in the same manner, or by cancelling, tearing, obliterating, or otherwise destroying the same by the testator, or by some person by his consent, and in his presence,” as required by Gen. Laws, c. 193, s. 14. On the contrary, it was found in his safe after his decease, and in its original condition. It is true that it was in a bundle of papers of no pecuniary value, and “included in this bundle were several apparently incomplete drafts or memoranda of wills never executed, without date, some of which were apparently made since the date of said will.” But Fellows v. Allen, 60 N. H. 439, 441, is a recent and direct *495 authority that the fact of a will being found among worthless papers -works no revocation of it; and the authorities, as well as reason, demonstrate that the memoranda which, at most, are merely evidentiary facts of an inchoate intention to make another will, have no legal significance as acts of revocation; for, although the purpose of the mind always gives character to the act done, still, the legislature having established certain modes by which a will may be revoked, it is not within the legitimate power of courts to dispense with such requirements, and accept even a definite intention to perform the prescribed act for the act itself. Neither has the will become inoperative, asm whole, from necessity, either by an entire loss of the testator’s estate, or its total alienation, or b3r the decease of all the devisees without descendants, and so leaving nothing upon which it can operate. If, therefore, there has been a valid revocation, it must be one arising from legal presumption or implication; and this, in fact, is the principal contention. The existing statute as to the revocation of wills, which was originally adopted in 1822, after pointing out the modes by which a will may be revoked, expressly excepts any revocation implied by law from changes in the circumstances of the testator, his family, devisees, or estate, occurring between the time of making the will and his death. G. L., c. 193, ss. 14, 15. But what those changes are s. 15 does not in any manner attempt to define ; and the effect consequently is, to leave the matter of revocation by legal implication just as it stood before the enactment of that section. That is to say, s. 15 (which in the act of 1822 was a proviso to what is now s. 14) is to be taken not as a recognition and adoption of the common-law doctrine of implied revocation, but as a recognition and adoption of the English decisions under ss. 5, 6, and 22 of the English statute of frauds relative to the revocation of wills, passed in 1676; for the common law as to such revocations was abrogated by that statute. The English statute was doubtless the basis and model of our statute, directly or indirectly; and the proviso in the latter, we think, is to be regarded as merely explanatory of the preceding part of the section, proscribing the manner of express revocation. Practically", and in effect, it was an adoption, under then existing conditions, of such implied revocations as had been introduced and established by the English courts, contrary to the plain meaning of the English statute, and solely through the usurpation of legislative power. But the English courts did not go the length of establishing a rule that revocation might be shown by any change of circumstances affording satisfactory evidence of the testator’s revoking intention, but stopped far short of it, and restricted its application to a few exceptional cases, as to which it was held the statute did not apply.. Hence there is no tenable ground for holding that any causes *496 of revocation were intended by our legislature to be embraced in tbe proviso to tbe act of 1822, aside from the existing exceptions established by the English courts upon supposed equitable considerations ; and much less can it be held that any alteration was effected or intended by the revision of 1842, making the proviso a separate section, and slightly changing its phraseology. And as strongly tending to show that the purpose of the legislature was such as has been indicated, and that such has been the universal understanding of the bar of this state, it is a significant fact that no litigation has arisen as to the legislative intent, or the meaning of the language used in its expression, during the more than sixty years which have elapsed since the statute was first enacted. No new cause of revocation being introduced by the statute, the true inquiry is, whether the facts of this case bring it within any of the exceptions upon the subject -of implied revocation recognized by the English courts after the adoption of the statute of 1676, which were quite limited in number, and reasonably well defined and understood at the time our statute was enacted. The causes assigned upon this point as ground of revocation are,—subsequent changes in the circumstances of the deceased^ his family, and estate. They are, substantially, the death of his wife and his son Franklin, both of whom were legatees; his second marriage, but without issue; the alienation of the larger portion of his estate; and its nearly threefold increase in value through natural causes and judicious investments. But total revocation cannot be implied from the death of the wife and the son: “ the death of a devisee is a contingency always in view.” Shaw, C. J., in Warner v. Beach, 4 Gray 162, 164. “I know of no. case,” said Denman, C. J., in Doe v. Edlin, 4 Ad. & E. 586, “ where it has been held that the removal of an object of affection and bounty by death has been taken to be an implied revocation of a will, and in my opinion it does not operate so.” And see Fellows v. Allen, supra. Nor can it be implied from the testator’s remarriage, because the indispensable common-law requisite of the subsequent birth of a child is lacking. 1 Jar. Wills (5th Am. ed.) 272 ; 1 Redf. Wills 293; Parsons Wills *59; Worthington Wills *528. “Thisprinciple of law is incontrovertibly established.” 4 Kent Com. 522. And in this connection it should also be borne in mind that the rule never applied, except in cases where the wife and after-born children, the new objects of duty, were wholly unprovided for in the will, and whqre there was an entire disposition of the whole estate to their exclusion and prejudice : therefore, inasmuch as the widow and children of a testator, not provided for in a will, are, under our statutes, entitled to the same share of the estate as if he had died intestate, the sole reason upon which the rule was grounded no longer exists ; and so the rule itself has become inoperative and obsolete in this jurisdiction. „ *497 The inquiry thus becomes restricted to-the effect of the changes in the testator’s property,—the phrase, “ circumstances of the testator,” etc., relating to new family ties, and not to changes in property. 4 Kent Com. 521, and authorities generally. But if it were apparent, as it certainly is not, that in the case of a testator an entire revocation by legal implication resulted, either before or after the statute of 1676, from any change whatever of condition or circumstances except that of a subsequent marriage and child, it is the undoubted general rule that a partial revocation only produces what is inaptly and inaccurately termed a revocation pro tanto, instead of an ademption of the subject of the devise, and thus necessarily limits the operation of the will to the extent of the alienation; not, however, by reason of any defect in the will itself, but because it pleased the testator to make a disposition of such part of his estate different from what he originally intended, which it is always competent for him to do, either by a conveyance, or by a new will or codicil. See Fellows v. Allen, supra ; Carter v. Thomas, 4 Greenl. 341, 343, 344; Graves v. Sheldon, 2 D. Chip. (Vt.) 71, 75 ; Blandin v. Blandin, 9 Vt. 210, 211; Hawes v. Humphrey, 9 Pick. 350; Terry v. Edminster, ib 355, n.; Webster v. Webster, 105 Mass. 538, 542; Balliet's Appeal, 14 Penn. St. 451; Brush v. Brush, 11 Ohio 287; Floyd v. Floyd, 7 B. Mon. 290; In re Nan Mickel, 14 Johns. 324; McNaughton v. McNaughton, 34 N. Y. 201; Warren v. Taylor, 56 Iowa 182; Wells v. Wells, 35 Miss. 638; Brydges v. Duchess of Chandos, 2 Ves., Jr., 417 ; 4 Dane Abr. 576, 577; Lovelass Wills 358; 1 Redf. Wills 335; Parsons Wills 63. “ Conveying a part of the estate, upon which the will would otherwise operate, indicates a change.of purpose in the testator as to that part; but suffering the will to remain uncancelled, evinces that his intention is unchanged with respect to other property bequeathed or devised therein.” Weston, J., in Carter v. Thomas, supra, 344. The remaining circumstance, that of the increase of the estate, upon obvious considerations of public policy, has no weight; and to this effect is the great pr-eponderance of authority. Warner v. Beach, Webster v. Webster, Graves v. Sheldon, Blandin v. Blandin, and Balliet's Appeal, supra; Brush v. Wilkins, 4 Johns. Ch. 507, 518, 519; Wogan v. Small, 11 Serg. & R. 141, 145; Vandemark v. Vandemark, 26 Barb. 416; Verdier v. Verdier, 8 Rich. Law (S. C.) 135. “ A merely general change in the testator’s circumstances, as it regards the amount and relative value of his property, will not in general, if ever, have the effect to revoke a will, since the testator, by suffering it to remain uncancelled, does, in effect, reaffirm it from day to day, until the termination of his conscious existence.” 1 Redf. Wills 298. The conclusion then is, that the subsequent changes in the circumstances of the testator, his family and estate, do not imply a revocation of his will To effect a revocation, both the English *498 and New Hampshire statutes require certain specified things, which are lacking in this case, to be done, and not merely contemplated, or even actually intended to be done. It is true that at an early day the English common-law courts fell into the error of exercising legislative power, and materially amending the statute of 1676 by enlarging its specific. methods of revocation so as to include revocations founded upon new family ties and obligations on the part of the testator arising from subsequent marriage, issue, and leaving wife and child without provision, and that, inasmuch as our statute must, be regarded as a substantial reenactment of that statute in the sense in which it had been interpreted by the English courts anterior to 1822, full' effect must be given to their decisions, although plain encroachments upon legislative power; yet no r.ule was expressly established, and none can be inferred from the decisions, that makes it our duty to trespass still further upon the legislative domain, and so far judicially repeal the statute as to hold that the present case does not come within the purview of its fourteenth section. Even the English courts had come to a halt prior to 1822, and refused to extend the rule as to implied revocations beyond the precedents; and so have the American courts quite uniformly. See Doe v. Barford, 4 M. & S. 10; Tilghman, C. J., in Wogan v. Small, supra, and authorities generally. The rule for which the appellee contends is, that a revocation may be proved or disproved by any circumstantial evidence showing the testator’s intention; but the precedents do not support the contention. On the contrary, after a most thorough examination of the cases reported before the enactment of the New Hampshire statute, it was unanimously held, in Marston v. Roe, 8 Ad. & E. 14, by the fourteen judges sitting in the cause, that implied revocation takes place in consequence of a rule.or principle of law independently altogether of any question of intention; and there is no reason to suppose that tire legislature of 1822 took a different view of the reported cases. If their purpose was to make intention, of itself, a ground of revocation, and thus inevitably incite litigation and “ produce infinite uncertainty and delay in the settlement of estates,” the presumption is that the statute would have been drawn accordingly. Even Johnston v. Johnston, 1 Phillim. 447, upon which great stress has been laid by the appellees, while holding the subsequent birth of a portionless child to be an indispensable requisite which would effect a revocation when aided by other circumstances, and a subsequent marriage not to be an essential requisite, does not hold that the revoking intent may be inferred from a general change of circumstances simply, but makes the controlling principle rest upon new moral obligations and family ties arising after the making of the will, and thus limits its application to cases of subsequent marriage or birth in -which the wife or child would otherwise be left without provision for support. This case, however, is not relevant, the will being one of personalty *499 only, and the decision being made by an ecclesiastical court unencumbered by statute provisions; and if it were relevant, its governing principle when applied to this case would be fatal to the appellees, for the reason that no child was born to the testator subsequently to the execution of his will. This being so, it is of no practical consequence here whether the doctrine of implied revocation rests upon the fact of a changed intention, as held in Johnston v. Johnston, or takes place in consequence of a rule or principle of law founded on a tacit condition annexed to the will itself when made, independently altogether of any question of intention, as held in Marston v. Roe ; for the application of either principle to the facts of this case leaves the will unrevoked, because they fail to bring it within any of the exceptions introduced by the ecclesiastical or common-law courts. But in respect of intention, there is another consideration which may properly be adverted to. If the circumstantial evidence appearing in the case were competent in law and sufficient in fact to show a change of intention on the part of the testator as to his final disposition of his property, it would not appear that his intention would be less defeated by disallowing this will than by allowing it. The only issue is, testacy or intestacy. To this issue the inquiry as to the testator’s intention is limited ; and whatever testamentary change he may have thought of making, he had no thought of dying intestate and leaving his property to be disposed of by the statutory rule of descent and distribution. There is no authorized conjecture that if the alternative of intestacy or the unaltered will had been presented to him, he would have preferred the former rather than the latter. Hence, if all the circumstantial evidence were admissible, and if it proved all the appellee claims, the question it would present would be, not how the testator’s intent could be carried into effect, but how it should be defeated. The choice would be restricted to two modes of violation, one testate and the other intestate; and the former, supported-by the written and uncancelled evidence which the law regards as the best, would prevail over the latter, which would be sustained by no proof, competent or incompetent, and by no presumption of law or fact. The testator not intending to die intestate, the decree of disallowance for which the appellee contends would be an intestate reversal of a testamentary purpose. “But Gen. Hoitt intended to change his will.” Suppose he did: the change could not now be made. The intended alteration (if there was one) is not known, and the altering power has ceased. The proffered oral declarations of the testator, to the effect that he understood the will was revoked, were rightly rejected. The mere understanding of a testator cannot revoke his will, for legal requirements cannot be thus abrogated; nor can his oral declarations, for wills cannot be revoked by parol; nor, upon the great weight of authority, are such declarations evidence, unless they *500 accompany some act of revocation and thereby become a part of the res gestae. Jackson v. Kniffen, 2 Johns. 31; Dan v. Brown, 4 Cow. 483; Clark v. Smith, 34 Barb. 140; Waterman v. Whitney, 11 N. Y. 157 ; Randall v. Beatty, 31 N. J. Eq. 643; Lewis v. Lewis, 2 Watts & S. 455; Hargroves v. Redd, 43 Ga. 142, 160; Gay v. Gay, 60 Iowa 415; Rodgers v. Rodgers, 6 Heisk. (Tenn.) 489; Smith v. Fenner, 1 Gall. 170 ; Doe v. Palmer, 16 Ad. & E. 747; 2 Gr. Ev. (9th ed.), s. 690; Abb. Tr. Ev. 124; 2 Stark. Ev. (3d ed.) 1286 ; 1 Redf. Wills 331. Such declarations also were not competent upon the testator’s intention not to pass by his will after acquired real estate. If a contrary intent is inferable from the will itself, it cannot be disproved by extrinsic evidence. If it is not thus inferable, and may be ascertained by the weight of competent evidence, his declarations are not a part of such evidence. Decree of the prohate court reversed. Will allowed. Allen, J., did not sit: the others concurred.