In re the probate of the last Will & Testament of Fisher

By the Court, Cole, J. Edward- Eisher deceased July 27th, 1852, leaving among his papers two testamentary instruments, bearing date March 18th, 1844, and March 25th, 1850. By the first, he gave Isaac Eisher, Thomas Longrigg and Richard Leach, the sum of £1,400, part of his personal estate in trust, to be invested'in real or government securities, and apply the interest and proceeds for the maintenance of Charlotte Dutton, and for — 262 — the maintenance and education of his three illegitimate children bj her, viz: James, Angelina and Mary Ann Dutton, until they shall respectively attain the age .of thirty-one years; and upon James attaining the said age, said trustees to pay him the sum of four hundred and sixty-six pounds, thirteen shillings and four pence, being one-third of the said sum of ,£1,400; Angelina and Mary Ann, upon attaining the age of thirty-one, to be paid each two hundred and thirty-three pounds, six shillings and six pence, another third of the said £1,400; and the interest and dividends of the remaining third of the £1,400 was to be paid Charlotte Dutton during her life, and upon her decease, one-half thereof was to be paid James, and the other moiety to be divided equally between Angelina and Mary Ann, if they are thirty-one, and if they are not thirty-one, then the interest thereof to be applied to their maintenance until they arrived at the age of thirty-one. If any of them should die before arriving at the age of thirty-one, leaving child or children, then the share of him or her so dying, to be paid to said child or children left, equally ; but if any of them should die before attaining said age, without having any child or children, or being such, and they, he or she shall die before attaining the age of twenty-one, then the share of him or her, the said James, Angelina and Mary Ann Dutton, so dying, to form part of the residue of his personal estate. The residue of the personal estate, after paying debts, funeral and testamentary expenses, was given to Isaac Eisher, Elizabeth Leach and Ann Longrigg, equally, and to their children, in case either of them should die in the lifetime of the testator. Isaac Eisher, Thomas Longrigg and Eichard Leach, were appointed joint executors and trustees of the will. By the testamentary paper of March 25th, 1850, purporting to be the last will and testament of Edward Eisher, he gave unto his brothers, Isaac and William Eisher, and his brother-in-law, Thomas Longrigg, the sum of seven hundred pounds, part of his personal estate upon trust, to lay out and invest the same upon real or government security, and to pay or apply the annual interest and proceeds unto the maintenance and education of Mary Ann Dutton, the illegitimate child of Charlotte Dutton, until she was sixteen years of age, at which time the said trustees were to purchase with said sum of £700, for the said Mary — 263 — Ann Dutton, a government annuity of six skillings a week for life, and tbe remainder of the said sum, after purchasing said annuity, to form part of the residue of the personal estate; and in the event that Mary Ann should die before attaining the age of sixteen, then the whole sum to form part of the residue of the personal estate. He then gave Charlotte Dutton a government annuity of five shillings a week for life; Angelina a government annuity of six shillings a week for life; James Dutton a government annuity of seven shillings a week for life; and if any of them should die in the testator’s lifetime, the sum required to purchase the annuity was to form part of the residue of his personal estate. He also^ gave-John Briggs and his children £50, Thomas Fisher, John Fisher, James Fisher and Mary Hewitson, ¿£25 each; Ann Longrigg, Elizabeth Lowthion and and George Lowthion, £50 each, if they survived the testator; and if not, the legacy of him or her so dying, was to form part of the personal estate. Then follows this clause in the will: “ All the rest, residue and remainder of my personal estate and effects, whatsoever and wheresoever, whereof I have any power to dispose, after payment of all my just debts, funeral and testamentary expenses, I give and bequeath the same unto my two brothers, Isaac and'William Fisher, "and unto my two sisters, Elizabeth, the wife of Robert Leach, and Ann, the wife of the said Thomas Longrigg, to be divided equally amongst them ; and if any of them, the said Isaac and William Fisher, Elizabeth Leach and Ann Longrigg, shall happen to die in my lifetime, or before any of the contingent shares above mentioned, to become payable on the death of the said Charlotte, Angelina, Mary Ann and James Dutton, and the said Thomas, John and James Fisher, Mary Hewitson, Ann Longrigg, and Elizabeth and George Lowthion, then I give and bequeath the share of my said brother or sister so dying, unto his or her child or children, in equal shares, if moré .than one, and if but one, the whole of such share to such one child. And if the said William Fisher shall happen to die in my lifetime without leaving child or children, then I give and bequeath his share unto the said Isaac Fisher, Elizabeth Leach, Ann Longrigg, to be divided equally amongst them.” Then follows a clause appoint — 264 — ing Isaac Fisher, William Fisher and Thomas Longrigg, joint executors and trustees of the will. The latter will was presented to the county judge for probate on behalf of the executor, William Fisher; and the former was also presented for probate on behalf of the guardian of James, Angelina and Mary Ann Dutton. Both applications were consolidated and testimony taken to prove the execution of both wills. The judge of probate decided that Edward Fisher legally executed, published and declared each of said instruments, at their respective dates, as and for his last will and testament, and that he was in all respects competent to make said wills when they were executed. He also held that the instrument bearing date March 25th, 1850, was a revocation of the instrument bearing date March 18th, 1844, and that the former was a valid will, and it was admitted to probate as the last will and testament of Edward Fisher. From this décision the guardian entered an appeal to the Circuit Court, and that court decided that the two instruments should be admitted to probate, as constituting so far as the legacies in them contained, one will, and that the instrument of March 25th, 1850, revoked only so much of the testamentary paper dated March 18th, 1844, as relates to the residuary legacies mentioned in the last-mentioned instrument. To reverse the decree of the Circuit Court the cause is brought here by a writ of certiorari, and the first and only question in the case is as to the correctness of the decree of the Circuit Court. I am of the opinion that the decision of the Probate Court was correct in admitting to probate the instrument of March 25th, 1850, as the last will and testament of Edward Fisher, to the exclusion of the one dated March 18th, 1844. Both of these papers, it will be observed, appear to be perfect and complete wills, properly executed and duly attested. They both likewise relate exclusively, to personal estate, and by specific legacies and residuary clauses, each is entirely adequate to the disposition of all the personal property belonging to the decedent. It is very true that there are no words in the latter will expressly revoking the former, yet I think from the nature of the instrument itself, that it must necessarily operate as a revocation of it. To my mind it is very apparent that a man cannot have two independent wills of personal estate, at the same time, each acting upon — 265 — the same subject matter, and each professing to make a distinct and full disposition of sucb subject matter; although he may leave several papers, positively disposing of his property, neither of which in itself, is, or purports to be, a complete will. Stone vs. Evans, 2 Atk. 87; Beauchamp vs. Earl of Hardwick, 5 Ves. jr. 280; Bac. Abr. title Wills “D.;” 1 Jarmin on Wills, marg. p. 160 ; Sandford vs. Vaughan, 1 Phill. 128 ; Harley vs. Bagshon, 2 id. 48. Could I consider the instrument of March 18th, 1844, and of March 25th, 1850, as really constituting one will, I should have no difficulty in affirming the Recree of the Circuit Court. But I cannot so regard them. Each instrument appears to me to be a distinct substantive will of itself, and not one in the nature of a supplement or codicil to the other. The latter in time is competent to make, and does in fact make á different and full disposition of the testator’s property. I think .it must revoke the former and is the will of the deceased. Such I understand to be the rule of law. Bac. Abr. Wills “ H.” In 1 Jarmin on Wills, marg. p. 159, it is stated that “ where a testator at different periods of his life has made various testamentary papers, some of which he destroys, and others he leaves undestroyed, each purporting to contain his last will, this character belongs exclusively to such one of the uncanceled papers as was executed most proximately to his decease.” And in Bolle Abr. p.. 615, under the head of what may be a revocation, it is said that a will perfect in its nature, and properly executed, but incapable of operating on account of some incapacity in the devisee-to take, nevertheless operates as a revocation of a former will, because all the requisitions of the statute are complied with, and it is inoperative on account of some e3> trinsic circumstances. See also Goodright vs. Harwood, 8 Wils. 497; S. C., Comp. 87; Goodright vs. Glazier, 4 Burr. 2512; 2 Greenlf. Ev. sec. 681. In Comyns R. 451 (Limbery vs. Moore et al), it was held that if ther'e be an intention to revoke by a new will, and the instrument made for that purpose could not take effect on account of some defect in the execution, it could not revoke the old will until thfe new one should be complete. And it is said that this was agreeable to the rules of the civil law, as well as the resolu — 266 — tions of tbe common law, since tbe statute of frauds. In tbe civil law tbe rule is laid down in the following language: tunc prius testamerdum sumpitus cum posterios perfecium est. Dig. Lib, 28, tit. S,p. 2; Laughton vs. Atkins, 1 Pick. 585. Moreover it is contended, that these wills are inconsistent with each other only so far as tbe residuary clauses are concerned, and that the second will cannot, and does not operate as a revocation of the former will in respect to tbe legacies given to Charlotte Dutton and her three illegitimate children. This appears to be the view taken of the case by the Circuit Court, and it is insisted that that view is correct upon principle and authority. I have carefully examined all the cases within my reach cited by the counsel in support of this position, and am unable to £nd an authority in point., The case of Lyon vs. Fisk et al. (1 Lous. An. R. 444), was made under article 1686 of the Civil Code adopted in that state. That article is as fellows; “Posterior testaments which do not in an express manner revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatible with the new ones, or contrary to them, or entirely different.” That article was decisive upon the point before the court, and was so adjudged. Again it is insisted that these two wills in respect to the legacies before mentioned, fall within the principle of Hooley vs. Hatton (1 Bro. C. C. 890). I think, however, that the reasoning upon which that argument proceeds is more specious than solid. It goes upon the idea that the will of 1850, is in some manner connected with that of 1844, that the former is supplemental to to the latter, instead of being, as I think it clearly is, an independent will, making quite a different disposition of all the testator’s personal property. The doctrine in Hooky vs. Hatton, as I understand it, is that a repetition of legacies simpliciter in different testamentary instruments, which taken together, constitute one wiU, of equal, greater or less sums, shall be taken as cumulative and not substitutional. But does that rule apply to distinct substantive wills, which do, in fact, supplant, and which seem intended to supplant each other ? Some suggestions were made by the counsel who argued the case for the guardian of the children of Charlotte Dutton, that a — 267 — construction given to these wills which would permit them both to stand, so far as the legacies given to. those unfortunate illegitimate children were concerned, would' subserve the cause of substantial justice and humanity ; but it could not have been expected, and probably was not expected, that we should depart from the well settled rules of law applicable to cases of this kind. Those children certainly had strong claims upon the bounty and affection of the testator; but still had he seen proper to have given all his property to strangers, we could not have interfered with such a testamentary disposition of his estate. I think, therefore, that the decree of the Circuit Court must .be reversed, and that the decision of the Probate Court, in admitting to probate the last will to the exclusion of the first, was correct, and must be affirmed. Smith, J., dissenting.