Bohleber v. Rebstock

Mr. Justice Farmer delivered the opinion of the court: This suit was begun by appellants by bill in chancery filed in the circuit court of White county. The bill alleged complainants were children of John Rebstock, who died in White county, Illinois, November 13, 1910, leaving as his children and only hei'rs-at-law the complainants and all the persons named as defendants to the bill except Jacob Fechtig, who was a step-son; that on November 19, 1902, said John Rebstock executed an instrument in writing purporting to.be his last will and testament, and in December, 1906, he executed a .codicil to said will. Copies of the will and codicil were made exhibits to the bill. By the original will the testator made substantial bequests of land to the five children who are made defendants to the bill. He also gave to the two daughters made defendants, Amelia and Margaret, all his household and kitchen furniture, and bequeathed to Jacob Fechtig, the step-son, $200 in money. To the complainant Elizabeth Kirchoff he gave $600, which was to be paid to her by defendant Joseph Rebstock and was made a charge against the land devised to him by the testator. He gave the complainant Catherine Bohleber $100 by the original will and $100 additional by the codicil. The will states that the reasons of the testator for making the bequests in the amounts named to complainants were that he had previously made advancements to them out of his-estate. By the original will he also gave his son William. Rebstock the sum of $500, but this bequest was canceled and annulled by the codicil. By the original will, in addition to the land devised his son Edward Rebstock, he gave him the sum of $500 in money. The will then provided that if anything was left after the devises and bequests were satisfied it should be equally divided among all the testator’s children. The son Edward, and the step-son, Jacob Eechtig, were named executors of the will. After the death of the testator the will was admitted to probate and letters testamentary issued to the persons therein named as executors. The bill alleges that before the death of the testator he desired to change or revoke said will and codicil; that said instruments were in the city of Carmi, Illinois, and the testator resided on his farm five miles from said city; that for more than two months befo're his death he was so feeble as to be unable to leave his house and most of the time was confined to his bed; that the son William Rebstock lived with his father, and Joseph Rebstock lived near him and was during the last illness of the testator at his home the greater part of the time; that during this period of confinement of the testator he requested and entreated his sons William and Joseph to have a lawyer brought to his house so that he might change or revoke his will and codicil, but that said William and Joseph Rebstock refused to comply with this request and threatened violence to anyone who would bring a lawyer to their father or in any manner render assistance to him in changing or revoking his will and codicil, thereby defeating his intention to revoke or change said instruments. The bill prays that said will and codicil and the probate thereof be set aside and declared null and void and that the estate of the testator be distributed among his heirs according to the laws of descent. A demurrer to the bill was sustained and a decree entered dismissing the same for want of equity. The complainants have brought the record to this court by appeal. The question presented is whether the desire and intention of a man who has made his will to revoke the same but who is prevented from doing so by the fraud or coercion of a party who will be benefited by the will not being revoked, are sufficient to justify a court of equity in decreeing the revocation of the will and setting it aside. Section x¡7 of chapter 148 of Hurd’s Statutes reads as follows: “No will, testament or codicil shall be revoked, otherwise than by burning, canceling, tearing or obliterating the same, by the testator himself, or in his presence, by his direction and consent, or by some other will, testament or “codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence; and no words spoken shall revoke or annul any will, testament or codicil in writing, executed as aforesaid, in due form of law.” Most, if not all, of the States of the Union, as well as England, now have similar statutes. The history of this legislation is referred to in section 244 of Page on Wills. Prior to the enactment of any legislation upon this subject in England, the question whether an intention to revoke a will was sufficient to constitute a revocation was considered by the courts, and the courts held that such an intention was sufficient to effect a revocation. These decisions led to such -uncertainty in the stability of wills and to such suspicion that' wills were being defeated by perjury that an act was passed defining what was necessary to the revocation of a will by the testator in his lifetime, and, as above stated, the various States of this country have enacted similar legislation. It will be seen our statute provides that no will or codicil shall be revoked otherwise than by burning, canceling, tearing or obliterating the same by the testator himself, or by someone in his presence and by his direction and consent, or by some other will or codicil duly executed. Under similar statutes the courts of this country have practically uniformly held, and text-book writers also lay down the rule, that the mere intention to revoke a will, unaccompanied by any act of the testator to execute that intention, will not be sufficient to revoke the will, even though the execution of the intention was frustrated by the fraud and improper conduct of other persons. Slight acts of tearing, burning or canceling, with the purpose and intention of revoking a will, may be sufficient for that purpose, but the intention to revoke, unaccompanied by any of the acts of destruction required by the statute, is insufficient. In section 255 of Page on Wills the author discusses the question whether the prevention of the revocation of a will by fraud of the beneficiaries is sufficient to justify a court in declaring a revocation under statutes providing what acts will be sufficient for that purpose, and says the weight of authority is that in the absence of any of the acts specified in the statute a will cannot be revoked by the intention of the testator alone, no matter by what deceit he was prevented from manifesting his intention. According to the author but three States (Connecticut, Georgia and Tennessee,) have decided a contrary view, but in some, if not all, of these States there was at the time of the decisions no statute specifying what acts were necessary to revoke a will. Mr. Page expresses the view that there ought tO' be provided by law some remedy in a case where the testator was prevented from revoking his will by actual coercion. Any such remedy, however, would have to be provided by statute. The following are some of the authorities in point in support of the proposition that where there is .a statute providing what acts will constitute revocation of a will, proof of an intention to revoke, unaccompanied by any of the acts provided by statute, is not sufficient to revoke a will: Jarman on Wills, .(4th ed.) 162; Gains v. Gains, 2 A. K. Marsh. 190; Blanchard v. Blanchard, 32 Vt. 62; Mundy v. Mundy, 15 N. J. Eq. 290; Clingan v. Mitcheltree, 31 Pa. St. 25; Kent v. Mahaffey, 10 Ohio St. 204; Hise v. Fincher, 10 Ired. 139; Delafield v. Parrish, 25 N. Y. 9; Graham v. Burch, 47 Minn. 171; Runkle v. Gates, 11 Ind. 95. The decree of the circuit court sustaining the demurrer to and dismissing the bill for want of equity is affirmed. Decree affirmed.