Brook v. Chappell

Dixon, C. J. As a nuncupative codicil to a written will, this application and the decree of the probate court thereon cannot be sustained. As a mere nuncupative will, standing alone and not affecting nor intended to affect the provisions of a written will, the ceremonies observed and proofs introduced are sufficient, probably, to establish it within the requirements of the statute regulating the making of wills of that kind. B. S., ch. 97, sec. 5 ; 2 Tay. Stats., 1204, § 5. But the difficulty springs from the fact that, as a nuncupative codicil, it operates ;pro tanto as a revocation of the written will, which' is forbidden by section 10 of the same chapter. By that section, no codicil, except.it be in writing, and-executed as prescribed in the chapter, can operate as a revocation of a written will or of any part thereof. The language of section 10 is: “ No will, nor any part thereof, shall be revoked, unless by burning, tearing, can-celling or obliterating the same with the intention of revoking it, by the testator or by some person in his presence and by his direction, or by some other will or codicil, in writing, executed as prescribed in this chapter, or by some other writing signed, attested'and subscribed in the manner provided in this chapter for the execution of a will; excepting only, that nothing contained in this section shall prevent the revocation implied by — 410 — law from subsequent changes in the condition or circumstances of the testator.” But although the county court erred in deciding that the words spoken by the testator constituted.a nuncupative codicil to his written will, and in ordering that the same be admitted and approved as such, we are yet of opinion, upon the undisputed facts presented, that the circuit court also erred" in directing the mere reversal of the judgment or order of the county court, thus denying the rights of the petitioner or those whom he represented to any relief in the premises and putting an end to their application, instead of rendering such other judgment in their favor, or directing the county court to render it, as by the law and the facts shown they were entitled to have rendered. We do not suppose the county court, sitting in probate, is limited to granting or refusing the precise relief asked on such application, but are of opinion that, acting within its jurisdiction, it may, especially where the' parties opposed in interest are present or are represented, grant any relief consistent with the facts proved or admitted and which the justice of the case demands. The same strictness of pleading is not requisite in the assertion of rights in that court, as in the courts of general common law jurisdiction. It is sufficient if the petition show a valid subsisting right in favor of the petitioner, and assert it in general terms, although not with the particularity of pleadings in courts of general jurisdiction. Flinn v. Shackleford, 42 Ala., 202. And see Amory v. Amory, 26 Wis., 152, where it was held that the court may grant any relief consistent with the case made, without any prayer for relief, or different 'from that prayed for. The powers possessed by the county court are the same as those conferred upon the circuit court on appeals from its orders and judgments, which are very broad and comprehensive. The statute declares: “ The circuit court may reverse or affirm, in whole or in part, the sentence or act appealed from, and may render such judgment as may be proper, or make such order — 411 — tbereon as tbe judge of tbe county court ought to have made, and may remit tbe case to tbe county court for further proceedings, or may take any other order therein, as law and justice shall require.” R. S., ch. 117, sec. 84; 2 Tay. Stats., 1815, § 84. We are of opinion, therefore, that tbe circuit court should have rendered a judgment, or have remanded tbe case to the county court directing it to render a judgment, establishing and confirming a trust in favor of the petitioners or parties interested in tbe application, against James K. Chappell, tbe residuary legatee and one of the executors named in tbe written will, and tbe person who appears as the party defendant in these proceedings, according to the principles of equity governing tbe case, and which will be hereafter stated in this opinion. We do not now undertake to say whether this should be in tbe form of an independent order or decree of the county court, establishing the trust and directing payment of the moneys by the trustees out of the estate or effects of tbe testator, or whether it should take the form of a judgment modifying to that extent tbe previous order admitting tbe written will to probate and adjudging tbe validity of tbe same. It is probable that a judgment in either form will be sufficient, though the latter may be thought, in some respects, preferable. Of tbe power of the county court in probate to grant the relief here spoken of, this court feels entirely confident. It has all tbe jurisdiction, both legal and equitable, unless expressly reserved, necessary to tbe due administration of the estates of deceased persons and to the performance of all acts required in the course of such administration, including the probate of wills and the giving effect to the intention of testators, whenever such intentions may be effectuated by the powers and processes possessed and used by any court of justice. It may grant equitable relief or enforce a trust in a case of this nature, the same as a court of equity; and although the jurisdiction of a court of equity still exists, it does not oust that of the county court in a proper case. The doctrine of equita — 412 — ble estoppel may be recognized, and its principles enforced, as well by the county court as by the court of chancery, the ju-. risdiction of the latter being concurrent, merely, in any matter pertaining to the settlement of the estates of deceased persons. And it is immaterial, also, that the petitioners, or parties seeking redress in the probate court, may have their remedy by action in a court of law as well. It is not unlikely, and indeed there seems to be good authority for holding, that the claimants here might have their remedy against the residuary legatee by action of assumpsit, or in that nature, to recover the amounts of their supposed respective bequests verbally directed by the testator to be paid to them and promised and agreed to be paid by the residuary legatee, and which, in the eye of equity, constitute as valid bequests or legacies, and bind and oblige the residuary legatee as firmly, as if they had been inserted in the written will itself. This, either upon the ground of equitable estoppel, or of fraud, or of the residuary legatee’s promise made to the testator that he would pay, is the view which a court of equity or of law must have taken; .and it is the same view the county court was at liberty to take, and which it was authorized to carry into effect by the making and entry of the appropriate order or judgment upon its records. The jurisdiction of the county court is declared by sections 5 and 6 of chapter 117, R. S., last above cited; 2 Tay. Stats., 1310, §§ 5, 6. Section five confers power to take the probate of wills, and to grant letters testamentary and of administration on the estate of all persons deceased, residents or inhabitants of the county at the time of their decease, or dying without the state and leaving any estate within the county to be administered, and to appoint guardians to minors and others in the cases prescribed by law. The powers thus given respecting the taking of the probate of wills and granting of letters testamentary and of administration are exclusive, and have always been so held. Section six enacts: “The judge of the county court shall have jurisdiction of all matters pertaining to the settlement of the estate — 413 — of such deceased persons, and of such minors and others under guardianship.” The jurisdiction here conferred is coextensive with that possessed by any court of equity or of law in a case of this description, which clearly relates to the settlement and distribution of the estate of the testator. Section 7 gives the-judge power to administer all oaths necessary in the transaction of business before the county conrt; and section 8, the power to issue all warrants and processes, in conformity to the rules of law, which may be necessary to compel the attendance of witnesses, etc. Other provisions might be pointed to in confirmation of the views here expressed; but it is deemed unnecessary. The plenary powers of the court of probate in all ■matters within its jurisdiction, have often been recognized by this court: and we do not know that they are or will be seriously questioned by any one. They are spoken of by Judge Redfield in his work on the law of wills, Part II, p. 12, as being universally accepted in all the American states, and the equitable jurisdiction of the court, or its authority to proceed in the administration of justice according to the principles and practice prevailing in the court of chancery, are- affirmed in Jackman Will Case, 26 Wis., 104, 109, 110, and in Ketchum v. Wadsworth, 5 Wis., 95, 105. We come now to consider what judgment the county court ought to have rendered, or what judgment the circuit court should have rendered, or have remitted the case to the county court with directions to render. As already observed, the facts are clear and undisputed, that the residuary legatee promised the testator that he would pay to the petitioners the legacies •or portions in controversy and' claimed by them in their appli- ■ cation ; and the conclusion is equally clear and not to be questioned, that the testator was induced to omit and did omit the making of the same provisions in his written will or in a codi- ■ cil to be annexed to that will. No one can doubt that, had the residuary legatee refused to comply with the request of the testator, a written will or codicil to the same effect would have — 414 — been prepared, and executed. We say the residuary legatee promised the testator to pay these bequests. It is true, only one witness testifies to facts showing an express promise. But a promise in such case may be implied as well as expressed. Trusts of this nature may be created by silent assent as well as by express words. Byrn v. Godfrey, 4 Vesey, 10; Paine v. Hall, 18 id, 475. Four witnesses testify positively to the facts, without one word in contradiction from the residuary legatee. This being so, the conclusion that the interview and conversation between the testator and the residuary legatee were just as those witnesses represent, is irresistible. It is equivalent to an admission of the facts by the residuary legatee, which, as Lord HardwiCKE observes in a similar case (Sheffield v. Duchess of Buckingham, 1 Atk., 629), is stronger than if determined by a jury. With respect to the law in such case it is thus briefly stated in Redfield on the Law of Wills, part I, p. 512 : “ In every case where one induces the testator to omit a provision in a will on behalf of another, by assurances that he, being the heir, or personal representative, or residuary legatee, will see such person paid such legacy or other provision, it is treated as an es-toppel upon the party, or a virtual fraud to refuse performance, whereby a legal duty is imposed, and it will be enforced in a court of equity.” See also 1 Story’s Eq. Jur., § 256. As a full discussion of the question under consideration, and examination of the authorities, both by court and counsel, it is probable that no more interesting or instructive case is to be found in the books than that of Hoge v. Hoge, 1 Watts, 163. The effort there was, and it was attended with success, to convert by parol evidence a devise of land absolute by the testator' to his brother John Hoge, into an estate in trust for the use and benefit of one William Hoge, an illegitimate son of the testator. The parol eyidence introduced consisted of declara-, tions of the testator made contemporaneously with his will, and I they were held competent evidence to establish a trust in him — 415 — to whom the absolute estate was devised, when followed by evidence that such devise was obtained by the fraudulent procurement of the devisee. The opinion of the court by GriBSON, J., reviews many of the previous decisions, and, like all the productions of that learned judge, is remarkable for the clearness and force of its statements, and the close and accurate dis-criminations made. We can not at this time do the profession a greater service or more correctly state the law than by quoting at considerable length from the opinion. The learned judge says: “Contemporary declarations of a testator have always been not only competent but powerful evidence of the fact declared; and the competency of declarations by the devisee, while he was the owner of the land, will not be disputed. Indeed, the objection was rather to the fact. itself than the evidence of it; and it is contended that parol evidence of a trust is contrary to our statute of wills, which corresponds, as far as regards the point in dispute, with the British statute of frauds. Undoubtedly every part of a will must be in writing, and a naked parol declaration of trust, in respect of land devised, is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee, to get at him; and there is nothing in reason or authority to forbid the raising of such a trust from the surreptitious procurement of a devise. In Dixon v. Olmius, Cox’s Chan. Ca., 414, a devisee who had been guilty of several acts of fraud and violence, particularly in preventing an attorney, sent for by the testator to alter his will, from entering the bedroom, was promptly declared a trustee for the party intended to have been benefited by the alteration. The question has been as to the circumstances which constitute such a fraud as will be made the foundation of a decree. A mere refusal to perform the trust is undoubtedly not enough ; else the statute which requires a will of land to be in writing, — 416 — would be altogether inoperative; and it seems to be requisite that there should appear to have been an agency, active or passive, on the part of the devisee in procuring the devise. In Whitton v. Russell, 1 Atk., 488, it was thought, by high authority, that even a promise to the testator to perform the trust was not such an agency, because, as it was said, the fraud, if any, consisted not in the procurement of the will, but in the subsequent refusal to perform it; and that every breach of promise is not a fraud. But it was also thought that the testator had not, in fact, been drawn to make the will by the promise, and on no other ground is the decision to be reconciled to a train of authorities by which it is conclusively established, that if he has executed his will on the faith of such a promise, the devisee shall be compelled;, to make it good. In Harris v. Harwell, Gilb. Eq. Rep., 11, a testator who had devised all his land to his nephew, desired his heir-at-law not to disturb him in the possession of certain after-purchased lands; and it was so decreed. So in Chamberlaine v. Chamberlaine, 2 Freem., 34, a testator,- having settled lands on his son for life, and having discourse about altering his will, for fear there should not be enough beside to pay certain legacies to his daughters, was told by his son that he would pay them if the assets were deficient; but afterwards, pretending that the lands devised to him fell short of these legacies, filed his bill to have a sum alleged to be equal to the deficiency raised out of other parts of the estate; and it was decreed that, having suffered his father to die in -peace on a promise xohich had prevented him from altering his will, he should pay them himself; the chancellor further remarking that it was the constant practice of the court to make decrees on such promises. That was a strong case, as the relief claimed would probably have put the son in no better condition than if the alteration had been made. To the same effect is Devenish v. Baines, Prec. in Chan., 3, in which a copyholder, intending to devise the greater part of his copyhold to his godson, and advising with the copyholders how that might best be done, was — 417 — prevailed upon by his wife to nominate ber to the whole, on her promising to give the godson tbe part intended for him; and it was decreed against the wife, notwithstanding the statute of frauds. And in Oldham v. Litchfield, 2 Vernon, 506, lands were charged with an annuity, on proof that the testator was prevented from charging them in his will by a promise of payment by the devisee. There are many other decisions to the same point; but I shall cite no more than Thynn v. Thynn, 1 Vernon, 296, in which a son induced his mother, by promising to be a trustee to her use, to prevail on her husband to make a new will, and appoint him executor in her stead; and he was so decreed. I have also cited these authorities with a particular reference to their circumstances, to show that the difference taken in the argument between real and personal estate is without foundation.” “ The principle of the relief to be granted is very satisfactorily disclosed by Lord Hardwicke, in Reech v. Kennegal, 1 Ves., 122, where an executor and residuary legatee, who had promised to pay a legacy not in the will, was decreed to discharge it out of the assets ; and I shall close my remarks on this part of the case with a recapitulation of his introductory observations. The rule of law and of the court, said the chancellor, strengthened by the statute, is, that all the legacies must be written in the will; and that all the arguments against breaking in on wills by parol proof are well founded. But notwithstanding that, the court had adhered to the principle that whenever a case is infected with fraud, the court will not suffer the statute to protect it, so that any one shall run away with a benefit not intended. The question was, whether the allegation of fraud was strengthened by the promise of the defendant; and he was of opinion that it was. That it had been taken that the fraud must be on him who might have remedy by law; but the court considered it as a fraud also on the testator. To apply this case to the case at bar. If the testator was induced by the promise of his brother, much more if by his suggestion, to believe — 418 — that a devise to him was the most prudent plan of securing the estate to his illegitimate son, it cannot be said that a breach of confidence thus reposed in him was intended to be protected by the statute; and with a direction to this effect, the point was put to the jury.” No remarks are necessary to point application of this language to the facts of the present case; and Other decisions to the same effect will be found numerously cited in Redfield and Story, supra. See also Philadelphia Library Co. v. Williams (Sup. Ct. Pa., May 19, 1873), 3 Bench and Bar, N. S., 154. We cannot close this opinion without reference to the recent case of Horn v. Cole (Sup. Ct. N. H), 12 Am. Law Reg., N. S., 303, as containing a most full and lucid examination of the doctrine of equitable estoppel as it has been applied in various cases, and showing the distinction between that and estoppels of other kinds. It will be seen from a perusal of the opinion, that the estoppel is directly applicable to the residuary legatee here. Chief Justice Perley there says: “ It has been declared in many cases that the equitable estoppel involves a question of legal ethics, and applies wherever a party has made a representation, by words or conduct, which he cannot in equity and good conscience prove to be false; and that this kind of estop-pel, being a broad doctrine of equity, cannot be limited in application by the terms of any narrow legal definition.” It follows from these views that the judgment of the circuit court must be reversed, and the cause remanded to that court to render the proper judgment in accordance with the principles laid down in this opinion, and to remit the case to the county court for further proceedings; or otherwise, that the circuit court, according to the authority vested in it by the statutes, give such order and direction to the county court that the proper judgment may be rendered and entered of record by the latter, which should have been rendered on the first hearing of the application. By the Court. — It is so ordered. — 419 — Order as to costs. . The costs in the circuit and county courts should be paid out of the estate. 26 Wis., 148. The costs in this court must he taxed, and judgment therefor rendered, against James K. Chappell, the residuary legatee and respondent in this appeal.