Richardson v. Baird

SheewiN, O. J. — ■ There is no contention that the obliteration under consideration was made before the will was executed, and the real question in controversy is one of fact. If the obliteration was made by. the testator, there can be no question as to his intent in making it. But his intent is wholly immaterial in this investigation, because section 8276 of the Code provides that wills can only be revoked by being canceled or destroyed or by the execution of subsequent wills, and that a revocation by cancellation must be witnessed in the same manner as the making of a new will. There was [410] no statutory revocation of the will or of the bequest to the plaintiff by cancellation, nor was there a destruction of the parts therof which were legible when the will was offered for probate. But that part of the clause which was completely obliterated was destroyed, and the will remains as if it had never been written. Gay v. Gay, 60 Iowa, 415. The bequest to the plaintiff is fairly legible in the will itself, and the weight of the testimony supports thus far the conclusion of the trial court. Beyond this, however, the testimony is in conflict, the appellants contending that the subsequent language of the clause is legible, and that the bequest to the plaintiff was conditioned thereby on her remaining or being unmarried at the time of the testator’s death. As we have heretofore said, all of the legible words in the clause must be considered, and, of course, the intent of the testator must govern. But the trouble here is that the original writing on which the appellants depend is so completely obliterated that it is impossible to decipher it with any degree of certainty. We must therefore give effect to the writing which is legible without regard to the entirely obliterated part of the clause. The judgment is affirmed.