Davis v. . King

MekrIMON, J. In this state, the revocation of written wills is regulated by statute, and to that statute we must look to see if the evidence offered by the caveator in this action was competent for the purpose of proving a revocation of the written will of Richard W. King, set out in the record. Sections 41, 42, 43 and 44, of chapter 119 of Battle’s Revisal, provide as follows: “41. No will or testament in writing, or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his direction and consent; but all wills or testaments shall remain and continue in force until the same be burnt, cancelled, torn or obliterated by the testator, or in his presence and by his consent and direction; or, unless the same be altered or revoked by some other will or codicil in writing, or other writing of the testator, signed by him, or some other person in his presence, and by his direction, and subscribed in his presence by two witnesses at least; or unless the same be altered or revoked by some other will or codicil in writing, or other writing of the testator, all of which shall be in the handwriting of the testator, and his name subscribed thereto, or inserted *445 therein, and lodged by him with some person for safe keeping, or left by him in some secure place, or among his valuable papers and effects, every part of which will or codicil, or other writing, shall be proved to be in the handwriting of the testator by three witnesses at least.” “ 42. Every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heirs, executors or administrators, or the person entitled as his or her next of kin, under the statute of distributions.” “43. No will shall bo revoked by any presumption of an intention, on the ground of an alteration in circumstances.” “ 44. No conveyance or other act made or done subsequently to the execution of a will of, or relating to any real or personal estate therein comprised, except an act by which such will shall be duly revoked, shall prevent the operation of the will with respect to any estate, or interest in such real or personal estate as the testator shall have power to dispose of, by will, at the time of his death.” These sections comprise all the statutory provisions of this state in respect to the revocation of written wills. We have examined with care the paper-writing offered in evidence by the caveator on the trial of the issue devisavit vel non, to prove a revocation of the will in question. It is the transcript of the record of adoption, legitimation and change of name of an illegitimate son of the testator. It does not purport in terms or effect to be a testamentary paper. There is not a word in it that can, in our judgment, be construed to have a testamentary meaning, nor does it in the remotest degree refer to any will executed or to be executed by the testator; nor in terms or effect does it. purport to be a writing signed by himself, or by some other person for him, by his consent and direction in his presence; nor is it-a paper-writing, all in the testator’s own handwriting and his name subscribed thereto, or inserted therein, and lodged by him with sonic person for safe keeping, or left by *446 him iu some secure place "or among his valuable papers and effects, to be proved to be all in his own handwriting by three witnesses, the object being to revoke the will in.question, or any will. In no sense is it testamentary, and this was so manifest that it was not offered for probate. In the absence of all testamentary and revocatory -words that might possibly be construed to be such, and in the absence of any intention expressed in words or by implication, or otherwise, in the paper-writing to revoke the will, the parol testimony offered to show the meaning and purpose of the testator in relation to the paper-writing offered, would be incompetent. To allow such testimony to be received on the trial of the issue would be practically to revoke a will by oral declarations and ignore the plain requirements of the statute. It is only when upon the face of the writing it is doubtful whether it is testamentary in its purpose, that parol testimony can be received to explain the meaning of the supposed testator. There must be something arising upon the face of the writing that will warrant the testamentary meaning the party offering it attributes to it. It must be capable of a possible construction, such as that given it by the person offering it as a testamentary paper. Robertson v. Dunn, 2 Mur., 133; Clayton v. Liverman, 7 Ired., 92; 1 Williams Exrs., 296; Thorne v. Rooke, 2 Curtis, 799. The court below properly refused to receive the paper-writing mentioned in the exception, and the parol testimony tending to show the alleged testamentary character of the same. There is no error. The judgment must be affirmed and it is so ordered. Let this be certified. No error. Affirmed.