Michigan Trust Co. v. Fox

Brooke, J. (after stating the facts). The statute covering the question involved (3 Comp. Laws, § 9270 [3 Comp. Laws 1915, § 11825]) follows: “No will nor any part thereof shall be revoked, unless by burning, tearing, canceling 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 oí a will; excepting only that nothing contained in" this section shall prevent the revocation implied by law from sub — 706 — sequent changes in the condition or circumstances of the testator.” Under this statute it is the assertion of the intervening appellant that the burden of proof rests upon the party asserting a revocation to establish by competent evidence, not only an intent to revoke, but an appropriate act to work a revocation. It is said: “An intention to revoke cannot be presumed from acts that are in themselves incomplete and inconclusive, and are as readily accounted for in some other way” (citing Safe Deposit & Trust Co. v. Thom, 117 Md. 154-163 [83 Atl. 45]; 30 Am. & Eng. Enc. Law [2d Ed.], p. 633). And it is argued that, even admitting the interlineations and obliterating marks were made by the testator in his lifetime while mentally competent, the deduction that the obliterating marks were made with the intention of revoking the sections obliterated cannot properly be drawn. Counsel says: “The instrument with the markings upon it is too loose and incongruous to be considered as expressing his intention, and such parts of the instrument as were entered in the judgment of the court below, as the will of the deceased, do not, by themselves, afford sufficient data for a determination of what the testator meant.” In considering this appeal we must again point out that the propriety of the judgment of the court below in establishing certain portions of the will is not before us for consideration. We are only concerned in determining whether the court was correct in holding that section 18 was obliterated by the testator with the intention of revoking it. Assuming that the burden rested upon the contestant to show that section 18 was revoked by the testator in his lifetime, counsel for contestant assert that that burden has been met. In considering the matter in this court we are dealing with the finding of a court without a jury — a find — 707 — ing of fact to the effect that section 18 was obliterated by the testator with the intention of revoking it. Under our authorities, if there is any evidence to sustain such finding, it cannot be disturbed in this court. While we have no case in Michigan involving a partial revocation controlling of the case at bar, there is an abundance of authority in other States under statutes identical, either in language or principle, with our own. A few of them follow: In re Wikman, 148 Cal. 642 (84 Pac. 212); Varnon v. Varnon, 67 Mo. App. 534, where the court states: “This statute means that there may be a partial revocation of a will; the balance remaining intact. This is announced as the law in jurisdictions governed by similar statutes” (citing Bigelow v. Gillott, 123 Mass. 102 [25 Am. Rep. 32]; Schouler on Wills, §§ 389, 397; Tomlinson’s Estate, 133 Pa. 245 [19 Atl. 482, 19 Am. St. Rep. 637]). The Massachusetts statute (Gen. Stat. 1860, chap. 92, § 11), covering the question, is as follows: “No will shall be revoked, unless by burning, tearing, canceling, or obliterating, the same with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction.” It will be noticed that this statute omits the words, “nor any part thereof,” or “any clause thereof,” yet under this statute the court in Bigelow v. Gillott, supra, held a partial revocation might be accomplished, saying: “The power to revoke a will includes the power to revoke any part of it.” See, also, Home of the Aged v. Bantz, 107 Md. 543 (69 Atl. 376); In re Kirkpatrick, 22 N. J. Eq. 463; Hilyard v. Wood, 71 N. J. Eq. 214 (63 Atl. 7); Brown v. Brown, 91 S. C. 101 (74 S. E. 135); Brown’s Will, 1 B. Mon. (40 Ky.) 56 (35 Am. Dec. 174); Well’s Will, — 708 — 4 T. B. Mon. (20 Ky.) 152 (16 Am. Dec. 150); Linnard’s Appeal, 93 Pa. 313 (39 Am. Rep. 753); Tudor v. Tudor, 17 B. Mon. (56 Ky.) 383; Safe Deposit & Trust Co. v. Thom, supra; Barfield v. Carr, 169 N. C. 574 (86 S. E. 498). Counsel for appellant contends that a history of the legislation indicates an intention on the part of the legislature to permit revocation of a will only as a whole, and that the act of revocation to become operative must be such as to destroy the effect of the entire instrument. Counsel indulge in a considerable discussion upon statutory construction which we do not deem it necessary to follow. The plain language of the statute itself is sufficient to answer the contention of the appellant, “No will, nor any part thereof.” The opening words of the section are píain, unambiguous, and easy of comprehension; they mean just what they say; and, in the absence of all authority, it would be necessary to hold that the legislative intent, as expressed in the language used, was that a testator might, either by burning, tearing, canceling, or obliterating, revoke a part of his will if the act was done intentione revocandi. The fact that a pencil, instead of a pen, was used in canceling or obliterating section 18 is not significant. Either instrumentality may be used. Hilyard v. Wood, supra; Tomlinson’s Estate, supra; McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. Rep. 71, 1 Am. & Eng. Ann. Cas. 606). Was there evidence to sustain the finding of the court that section 18 was obliterated with the intention of revoking it? A long line of authorities in various States hold that, where the will is found among the testator’s papers with lines drawn through or across certain phrases or clauses, a presumption arises that the cancellation was made by the testator with — 709 — the intent to revoke. In the case at bar recourse need not be had to the presumption as to who made the obliterating marks upon section 18. It is conceded they were made by the testator. The question of intention still remains. A similar question arose in the case of In re Wikman, supra. There the court said: “The only remaining question is whether the evidence sustains the finding, under No. 4, that the cancellation was done by the testator with the intent and' purpose of revoking that part of the will by which appellant was appointed executrix. This is a finding of fact, and must be sustained if there is any reasonable amount of evidence supporting it. It appears in this case, as before stated, that the will was in the possession of the testator from the time of its execution until his death; that immediately after his death it was found among his effects in his trunk; and that when so found the ink lines were over and through the words as above described. These circumstances were sufficient to warrant the court in making the finding, and it was substantially so held by this court in Estate of Olmsted, 122 Cal. 224 (54 Pac. 745).” See, also, In re White, 25 N. J. Eq. 501; Home of the Aged v. Bantz, supra; In re Hopkins’ Will, 172 N. Y. 360 (65 N. E. 173, 65 L. R. A. 95, 92 Am. St. Rep. 746); Hilyard v. Wood, supra; Tomlinson’s Estate, supra; McIntyre v. McIntyre, supra; Safe Deposit & Trust Co. v. Thom, supra; 1 Jarman on Wills, p. 119; 1 Williams on Executors, p. 85; 1 Redfield on Wills, p. 307; Burton v. Wylde, 261 Ill. 397 (103 N. E. 976). Whatever may be said as to the propriety of probating a portion of this instrument as the will of the testator, we have no hesitation whatever in agreeing with the finding of the circuit judge that section 18 was obliterated by the testator with the intention of revoking it. Error is assigned upon the admission of — 710 — certain testimony. As the case must be disposed of on the fundamental question discussed, it is unnecessary to examine those assignments. The judgment is affirmed. Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.