In re Noyes' Will

The opinion of the court was delivered by Ross, J. The statutory requirements for the legal execution of a written will and of a written revocation of a will are identical. R. L. ss. 2042, 2047. No good reason has been suggested, and none has occurred to this court, why the same kind, quality and method of proof should not be required for the establishment of its revocation, which have uniformly been required for the establishment of a will. Both instruments relate to the same subject .matter, are controlled by the same public policy, and are required by statute to be executed with the same guards and formalities. To allow the revocation to be established by other and different evidence than is required for the legal establishment of a will, would partake of court legislation, rather than of proper construction of statutes, and defeat rather than enforce the legislative intent. The County Court required the contestants to establish the revocation by the same kind and measure which have been uniformly required for the establishment of the due execution of a will. It has not been claimed by the contestants that the proof produced and offered met this requirement. It was lacking in several essential par [21] ticulars. It did not tend to show whether the revocatory will was executed as the statute requires, nor whether the purported signatures of witnesses were genuine, nor who the witnesses were, nor whether they were living, or dead, nor, if living, whether they were within the reach of process ffom the court. The most that the evidence offered tended to show was, that the witness on one occasion was shown a paper by the testator, which he said was his will, which appeared to be signed by the testator, and had upon it what purported to be the names of three persons, whose names the witness did not remember, in the place usually occupied by the names of the witnesses to a will, and that this writing contained a clause revoking former wills. Beyond the declaration of the testator that it was his will, and his reasons for making it, it had no tendency to show that it was his will. But this had 'no tendency to show that it Rad been executed with the guards and formalities required by •the statute. Hence the County Court properly refused to submit the evidence offered to the jury. The holding of the County Court was in accordance with the requirements of( the statute and of public policy, and with the decisions of other courts of final resort. We entertain no doubt of its correctness. .It is •contended by the contestants that its holding required them to establish the revocatory will first in the Probate Court, and by •certified copy of the judgment of that court. If this contention were supported by the record it would merit grave consideration. If the instrument attempted to be proved were simply a written revocation of the will offered for probate, it is not apparent why it should be first established in the Probate Court. No more is it apparent why a will containing a clause revoking former wills, meed be established in its entirety as a will, to operate to defeat the probate of former wills; why the establishment of the revocatory clause in the appellate court would not be sufficient'; and if the revocatory clause can be so established, why can not the whole revocatory will, so far as necessary to establish the revocation of former wills be so established ? But the record, pp. 81 and 88, shows that no such requirement was made by the [22] decision of the court below, and only that the' contestants should in the county court establish the revocation by producing the’ same kind and manner of proof, and under the same rules, gov-, erning the production of proof in that court for the establishment of the will. We need not therefore pass upon this contention. The result is, we find no error in the ruling and judgment of the County Court and that judgment is affirmed, and certificate stayed, and cause as to granting certificate continued to-regular term.