Dixon's Appeal

[426] The opinion of the court was delivered, October 31st 1867, by Thompson, J. — The appeal in this case, from the decree of the Register’s Court of Franklin county, admitting to probate a will of William Gillan, deceased, dated the 14th January 1867, was taken by the appellants to establish a revocation of his will by the testator, and consequently an intestacy in regard to his entire estate. It is necessary,-in order to see clearly the position occupied by the appellants, to give a brief summary of the facts of the case. Sometime after the execution of his will dated as above, and its delivery for safe keeping, it appears that the testator came to the conclusion that he would make a change in it, so far as to reduce the legacies to his daughters, the appellants,-$300 each; giving as a reason, a fear that the expenses incident to his sickness would require this. To effectuate this purpose, he sent for the will, and desired the scrivener, with whom it had been deposited, and who had drawn it, to make this change by erasing the original sums mentioned, and interlining those intended. The scrivener made objections to this mode of accomplishing the object, and proposed writing a new will; but the testator insisted on the alteration, declaring an unwillingness to write his name again. Accordingly the alteration was made as he wished, and the date of the will altered to the 15th of February, the date of the alteration. The witnesses to the will were called in, and were present and their attention called to the change, and the testator acknowledged in their presence his former signature as the signature to the will. There was no new signing by the testator or.witnesses, and no intention expressed by the former of a design to change the will in any other particular, and the former custodian again took charge of the will at the request of the testator. The register admitted this altered instrument to probate, whereupon the daughters, the appellants in this case, took an appeal to the Register’s Court, where after hearing, it was determined that the will of the date of the 14th January 1867, unaffected by the attempted alteration, was the last will of the testator, and admitted it to probate accordingly. This reinstated the original instrument intact as the will of the testator; and thus were restored the legacies in favor of the daughters, the appellants, as originally inserted. In this decision the sons of the decedent, the residuary legatees, and who are the appellees in this case, acquiesced. Not so the daughters. They again appealed, in order, if possible, to create an intestacy as to their father’s estate, so as to become equal sharers in it with their brothers, by setting up a revocation of the will in the acts referred to. It must be borne in mind that no question is raised by any one, of a partial revocation, or revocation of the legacies to the daughters. The appellees do not claim it, and of course the appellants [427] would noc; but they do claim that the attempted alteration, and the acknowledgment of his signature by the testator, operated as a revocation of the former will, and was a defective execution of a new one. If these positions are maintainable, then a will may be destroyed without intending it, and by other means than those given in the statute, as the only evidence of the animus revocandi. It would be a repeal of the Statute of Wills of 1838, so far as the 13th section is concerned at least. That section provides, “ That no will in writing concerning any real estate shall he repealed, nor shall any devise or direction therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the same manner as hereinbefore provided” for executing wills, “ or by burning, cancelling, or obliterating or destroying the same, by the testator himself, or by some one in his presence and by his express direction.” To prevent frauds and perjuries is the section so specific. This enumeration of the means of revoking wills establishes two general methods. The one by writing; such as making a new will, or codicil, or other writing executed in the forms necessary to be observed in making a will. Certainly nothing like this appears in this case. The other method is by acting directly on the paper on which the will itself is written; and this may be by burning, cancelling, obliterating or destroying it. These all contemplate some physical act done, to evince the intention to revoke. The extent may not be material, provided there he enough to show an intention to destroy or cancel. Here, there was neither burning, cancelling nor obliterating, or destruction of the will. If it had been claimed that the entire legacies to the daughters were destroyed by obliteration, there might have been abstractly some plausibility in it, but it was not intended, and nobody contends for it. Hut neither the signature to the will, nor its contents, were obliterated — I see not therefore how a careful interlineation could be held to be an obliteration within the act. The former means not destruction necessarily, as does the latter. Certainly it did not in this case, for the testator declared his will as altered, to be his will, and delivered it to be kept as. such. Keeping in mind that it is the entire instrument which we have to deal with, and not the effect of the interlineation upon the legacies to the appellants, it must be apparent to all that in point of form the will of William Grillan, deceased, was not revoked, and in point of fact was not intended to be by him. It being a complete will, it could only be revoked in some one of the modes designated in the statute. “ Those modes are an exclusion of all others Heise v. Heise, 7 Casey 246 ; 2 W. & S. 455. We need not trouble ourselves about the propriety or accuracy [428] of the Register’s Court in setting up as the will, that dated the 14th January 1867, in preference to that dated the 15th February 1867. The only parties interested to have that corrected if wrong, and we do not say it was or was not, are the appellees, and they do not ask it; they have not appealed. We will not, therefore, give them what they do not ask, even if it were much more clear in this case that we could do it, than it is. We decide only what is in the case according to the position of the parties, and that is, that the will of the decedent, William Gillan, was not revoked by any act of his, or by his authority. Decree affirmed at the costs of the appellants.