Limits to Testamentary Disposition.
While the law has generally granted the privilege of testamentary disposition, it has not deemed it expedient or politic to give the absolute and unrestricted power, so that a person can make a posthumous disposition of his property inanyway he thinks proper. For the public welfare, it has seemed judicious to impose certain restrictions on the right exercised by a person in distributing his property after his decease. It is well known that if an uncontrolled, absolute power were given, that individuals would sometimes disregard the claims of those who have a natural right to their bounty, and gratify their pride, their whims, or their vagaries in disposing of their property by will.
The possession of a large amount of property during a man’s lifetime gives him such a consciousness of power and authority, that it is difficult to disabuse his mind of the idea that he cannot perpetuate his name, his influence and control, after his death, by distributing and disposing of his property according to his pleasure.
The law is full of instances where men have attempted, by schemes in devising their property, to establish a name and an influence that would abide long after the mind that conceived them had ceased to act or control.
This has been the ambition, we may call it the infirmity, of some great minds; indeed, it seems sometimes a special characteristic of such persons to desire to live thus in the memory of posterity, by some remarkable and striking mode of disposing of their property after their decease, so as to leave some visible token of their influence and prestige, either in an institution or in a family,[206]either in a charity or a monument.
When properly and judiciously exercised, this desire has led to the foundation of those noble institutions for the relief of the indigent and helpless, for the promotion of knowledge and education, for the development of science and art, and for the furtherance of various benevolent designs, which are the boast and glory of our modern civilization, and which have done so much to foster and advance that civilization.
But at an early period this desire or infirmity was made use of by the clergy, who wielded such vast influence over the dying, to induce testators to dispose of property for enriching churches and monasteries, and various other institutions. So great did the evil become, and so many grievous abuses sprung up, that the public welfare was threatened and endangered, and in consequence of this, a bitter and determined struggle ensued between the civil and spiritual powers, lasting through centuries and giving a peculiar bias to certain legislation. As soon as some means would be devised to check the abuses, and to limit the power of the clergy,some new device would be contrived by their ingenuity to evade the rules or nullify a law. The establishment of the law of Uses and Trusts is a good example of these ingenious devices to evade a statute.
The several Statutes of Mortmain had their origin in this effort of the civil power to curb the influence of the spiritual power, and check a dangerous tendency to enrich corporations of a religious or eleemosynary character. These several acts occupy a prominent place in English history, and characterize a very important epoch of that history. Their influence has extended to us, who have gathered experience from the past, and this is plainly evinced in our Statutes of Wills in the different States, which disqualify corporations from taking by devise unless expressly authorized.[207]
It was found, however, that an indiscriminate prohibition would prevent the foundation of many worthy and useful institutions, which, instead of being a menace, would be a safeguard to the welfare of the State; and hence a distinction arose between such bequests as were for charitable uses, and those for superstitious uses, the latter of which were so obnoxious to the law, and forbidden by it. A superstitious use is thus defined in Bacon’s Abridgement.[208]It is, “where lands, tenements, rents, goods, or chattels are given secured, orappointed for and towards the maintenance of a priest and chaplain to say mass; for the maintenance of a priest or other man, to pray for the soul of any dead man, in such a church, or elsewhere; to have and maintain perpetual obits, lamps, torches, etc.,[209]to be used at certain times, to help to save the souls of men out of purgatory; these and such like uses are declared to be superstitious.”
Devises to charitable uses were supported in England at an early period in the common law, which is supposed to have derived its maxims on this head from the civil law. Lord Nottingham says, in the case of the Attorney-General v. Tancred,[210]that devises to corporations, though void under the Statute of Wills, were good in equityif givento charitable uses.[211]
The Statute of the 43d of Elizabeth enumerates what charitable uses were. They were, according to this statute, gifts for the relief of aged, impotent, and poor people; for maintenance of sick and maimed soldiers and mariners; for ease of poor inhabitants concerning payment of taxes; for aid of young tradesmen, handicraftsmen, and persons decayed; for relief, stock, and maintenance of houses of correction; for marriages of poor maids;[212]foreducation and preferment of orphans; for schools of learning, free schools, and scholars in universities; for relief or redemption of prisoners or captives; for repair of bridges, ports, havens, causeways, churches, sea-banks, and highways.
But as it was found that persons “dying and languishing”—in extremis—were frequently unduly influenced to dispose of their property to such charitable purposes, against the rights of their family or kindred, it was enacted by the Statute of Mortmain, 9 George II, that no property in land, or arising out of land, could pass to such purposes, unless by deed indented, sealed, and delivered in the presence of two or more credible witnesses, twelve calendar months before the death of the donor or grantor.[213]Of course, these statutes have no operation in this country, unless by special enactment. The statute of Elizabeth not being in force in New York, it was therefore insisted that no devise to charitable uses was, in consequence, valid.
The fluctuations of the law on this point present a remarkable and not a very satisfactory example of varying judicial opinion in that State. The earlier decisions of its highest court have lately been overruled, and the earlier doctrines on the subject discarded. Thus, in Williams v. Williams,[214]it was held that the law of charitable uses was not founded on the statute of Elizabeth, but was a part of the common law, which is still in force here, so far as conformable to our polity and adapted to our institutions; and that a court of equity, exercising the chancery jurisdiction of the English courts, will carry out the purpose of a testator; and that,notwithstanding the statutory prohibition against devises of lands to corporations, a devise of a charity, not directly to a corporation, but in trust for a charitable corporation, would be good. Subsequent cases followed this decision of Williams v. Williams; but later cases have altered the law in New York. The case which effected a change, and finally determined the law, is of historical as well as legal importance, and deserves a detailed statement.
It is the case of Levy v. Levy,[215]most learnedly and ably argued and examined in the various courts of the State. Commodore Uriah P. Levy, the testator, was an eminent and wealthy officer of the United States navy, of the Jewish religion, who became the owner of the famous farm of Jefferson, at Monticello, in Virginia, and who died in New York in March, 1862, leaving property valued at over half a million dollars. In his will, after making various bequests, he provided:
“After paying the above legacies and bequests, or investing for the same, and subject to my wife’s dower and use of furniture, I give, devise, and bequeath my farm and estate at Monticello, in Virginia, formerly belonging to President Thomas Jefferson, together with all the rest and residue of my estate, real, personal, or mixed, not hereby disposed of, wherever or however situated, to the people of the United States, or such persons as Congress shall appoint to receive it, and especially all my real estate in the city of New York, in trust, for the sole and only purpose of establishing and maintainingat said farm of Monticello, in Virginia, an agricultural school, for the purpose of educating as practical farmers, children of the warrant officers of the United States navy whose fathers are dead. Said children are to be educated in a plain way in the ordinary elementary branches to fit them for agricultural life, and to be supported by this fund, from the age of twelve to sixteen, and each of them to be brought up to do all the usual work done on a farm; the said farm to be so cultivated by the said boys and their instructors as to raise all they may require to feed themselves, and the schoolmaster and one other teacher, and one superintendent of the said farm. I also give and bequeath, for the purpose of giving such fuel and fencing for said Monticello farm-school, two hundred acres of woodland of my Washington Farm, called the Bank Farm, in Virginia, the said two hundred acres to be taken from said farm hereby devised to my nephew Ashel, and to be designated by said Ashel.
“In establishing said farm-school, I especially require that no professorships be established in said school, or professors employed in the institution; my intention in establishing this school is charity and usefulness, and not for the purpose of pomp. In proportion to the smallness of number of the teachers, so will industry prevail.
“The institution must be kept within the revenue derived from this endowment; and under no circumstances can any part of the real or personal estate hereby devised be disposed of, but the rent and income of all said estate, real and personal, isto be held forever inviolate, for the purpose of sustaining this institution. The estate and lands in New York can be leased to great advantage for that purpose.
“Should the Congress of the United States refuse to accept of this bequest, or refuse to take the necessary steps to carry out this intention, I then devise and bequeath all the property hereby devised to the people of the State of Virginia, instead of the people of the United States. Provided they, by acts of their legislature, accept and carry it out as herein directed. And should the people of Virginia, by neglect of their legislature, decline to accept this said bequest, I then devise and bequeath all of my said property to the Portuguese Hebrew Congregation of the city of New York, the Old Portuguese Hebrew Congregation in Philadelphia, and the Portuguese Hebrew Congregation of Richmond, Virginia: provided, they procure the necessary legislation to entitle them to hold said estate, and to establish an agricultural school at said Monticello for the children of said societies who are between the ages of twelve and sixteen years, and whose fathers are dead, and also similar children of any other denomination, Hebrew or Christian.
“I direct my executors hereinafter named, or such of them as shall qualify, to invest the funds arising from said estate in some safe, paying stocks as fast as they accumulate, and to hold the whole of the property and estate hereby devised and bequeathed for said school, and in their hands, until the proper steps have been taken by Congress, or the legislatureof Virginia, or the said Hebrew Benevolent Congregations, to receive the same and discharge said executors.”
The court, in its decision, extensively reviewed preceding cases, and held that, at common law, the trust would be void for want of a certain donee or beneficiary of the use or trust, whom the law could recognize. That it was uncertain which class of beneficiaries would be the parties in interest, and if the class were ascertainable, that the individuals thereof were indeterminate and unascertainable, and there was no ascertained beneficiary in whose favor performance might be enforced.
The court determined that the law of charitable trusts, as existing and enforced in England, being based on the statute of Elizabeth, was abrogated and annulled in the State by the act of 1788, which repealed the statute of Elizabeth; and that the legislature by that act intended to abrogate the entire system of indefinite trusts, which were understood at the time to be supported by that statute alone, as being opposed to the general policy of our government and to the spirit of our institutions.
The court also determined that the trustees named, viz., The People of the United States, or the State of Virginia, were incompetent to take as trustees, they being created for certain determinate political purposes, and having no other function or existence.[216]Nor could the Hebrew Congregations,it was held, so act, as the trust was not within the acts or province of their incorporation; the one in New York could only take property for its own use, and the foreign corporations could not take and act as trustees of lands in this State. The court was further of opinion that the whole of the peculiar system of English jurisprudence, for supporting, regulating, and enforcing public or charitable uses, is not the law of the State of New York when in conflict with statutory prohibitions relative to uses and trusts.[217]
This case was afterwards followed by Bascom v. Albertson,[218]holding and approving the views ofLevy v. Levy, which may now be considered as finally settling the law on this head in New York.
The statement of the law, as decided in New York, is not in harmony with the decisions in a large majority of the States. There is unquestionably a difference of opinion on this subject. The gist of inquiry is: Does the law of charitable uses exist in those States where the statute of Elizabeth is not in force, or has been repealed? Or, is the law appertaining to this subject founded on the common law, or is it the creation of the statute? There is no question that the weight of judicial opinion is greatly in favor of the doctrine that the law is not a creation of the statute, but is founded on the common law jurisdiction in the Court of Chancery, and as such can be administered by the courts in the absence of any special statute.[219]
The statute of Elizabeth is in force in Massachusetts, Pennsylvania, North Carolina, and Kentucky. It is not in force in Maryland, Virginia, California, and New York.
In some of the States, corporations are specially empowered by statute to take a certain amount ofproperty by devise.[220]In New York, there is a statute, passed in 1860, which prohibits a person having a husband, wife, child, or parent, from devising or bequeathing to any charitable or literary corporation more than half of his or her estate, after payment of debts.
The most frequent and dangerous propensity which law has to check and guard against in testators is that of perpetuating in their family for generations vast property and estates. The desire of founding a family of vast wealth and influence to preserve one’s property is not an uncommon one; it appeals to some of the dearest and most personal feelings of a man’s nature; it is peculiarly gratifying to pride and pomp, and, if not limited and checked, would be dangerous to the public welfare, as it withdraws from the channels of trade and enterprise a large extent of property. Hence, every civilized country finds it necessary to define the extent of a man’s control over his property, how long his volition can regulate its use after death, and to what purposes it shall be put. The common law permitted a control in this respect which wouldbe entirely incompatible with our republican institutions and equality of our citizens.
Under that law, a man had the power to tie up his property and suspend the power of alienation, as it was termed, for any number of lives in being, and twenty-one years and a fraction afterwards. He could order the accumulation of the rents, income, or profits for a similar period. The case which first drew attention to the danger of such a power was one of the most famous in English law, and one that has since been a warning and an incentive to legislation both here and in England. Perhaps, for the amount involved, the tediousness and length of the litigation, and the singularity of the provisions, there has never been a more famous case than that of Thellusson v. Woodford,[221]tried before Lord Chancellor Loughborough, in the year 1798. The case afforded a remarkable instance of the unnatural meanness and ostentation of the testator, in depriving his immediate descendants of their just share of his fortune, not to found any noble charity, but that his fortune might accumulate in the hands of trustees, for the miserable satisfaction of enjoying in anticipation the wealth and aggrandizement of a distant posterity who should bear his name.
Peter Thellusson was born at Paris, of Swiss parentage, his father being a minister from Geneva to the French court. He settled in London as a merchant at an early age, was naturalized, and, on the foundation of a fortune of £10,000, raised the princely possessions which afterwards became the subject of litigation. Itis said that he was generally respected, and, though a severe economist, lived in a style suitable to his wealth. His three sons were all members of Parliament. In the sixty-first year of his age, being at the time in perfect health and legal sanity, he made and executed his last will, bearing date April 2d, 1796, and thereby disposed of his property upon trust during the natural lives of his three sons, and of the sons of each of these then in being, and of any such issue as any of his grandsons might have as should be living at the time of his decease. During the lives of the survivors or survivor of these persons mentioned, the trustees were to collect and receive the rents and invest them, and, upon the decease of the last survivor, all the accumulated estates should be divided into three lots, of equal value, and settled upon the eldest male lineal descendant then living of each of his three sons; and, if there should be a failure of male descendants of two of his said three sons, the sole male lineal descendant of the testator should become entitled to the whole three lots, consolidated into one huge mass of landed property. The property was thus tied up in the hands of trustees, and kept from enjoyment for three generations. Shortly after executing this extraordinary will, on 21st July, 1797, Mr. Thelusson died. The money which the will sought to accumulate was estimated at £600,000. An accountant of that time calculated the accumulation—limiting it to seventy-five years, the shortest possible period during which the property would be tied up—at £27,182,000, an immense sum, butwhich he deemed would be considerably less than the sum it would be likely to reach when the improvement of money at a higher rate and the lengthened duration of the last survivor were taken into account. It was estimated, by one of the counsel in the case, that if there were three descendants to take, each would have an income of £650,000 a year; if only one, he would have an income of £1,900,000 a year, more than double the revenue of the king’s civil list, and surpassing the largest territorial fortune then known in Europe. Chancellor Kent, regarding it from his time, has said that if the limitation should extend to upwards of one hundred years, as it might, the property will amount to upwards of one hundred millions sterling.
The children brought an action to have the will set aside, but the court decided against them, and gave judgment confirming the trusts. The case attracted wide and deep attention from the magnitude of the fortune sought to be reared, and from the important principle of public policy involved. It was argued on both sides by the most eminent counsel at the bar, but nevertheless the Chancellor was compelled to hold the will valid, much, it is said, against his inclination. Next year, he was instrumental in getting Statute 39 and 40 Geo. III passed, restraining dispositions by way of accumulation to the life of the grantor, or twenty-one years after his decease, or the minority of any party living at the time of his decease.[222]
The property was accordingly left to accumulate; but the ambitious and vain visions of the testator and the alarm of the public were destined to disappointment. The structure which threatened even to overshadow the land in its ascending greatness has not risen to a disproportionate size. The operation of the trusts has proved practically a failure, as the accumulated mass of wealth is likely to fall far short of the amount which fanciful calculators had predicted. It has shared the inevitable fate of all such vast estates that get into the grist-mill of the lawyers. The litigation has been so expensive, that what with fees of lawyers, fees of courts, commissions to trustees, and the expense of management, thecorpusof the estate has been pretty well eaten up. The expenses of management from January, 1816, to 1833, exceeded £122,700. The only increase in respect of income was £8,356, and an accumulation of capital of £326,364.
The extent of time to which property is allowed to accumulate is very carefully and strictly defined in our statutes. It is generally only during a person’s minority, as in New York and California, and the same is believed to be the rule in general.[223]
The power of suspending the alienation of property by a devise is limited to lives in being in some States, or in others totwolives in being,[224]and nomatter how short may be the duration, the suspension will be invalid if it is not made to depend onlifeas the condition of the limitation.[225]On this account, some very worthy and benevolent schemes of testators have failed.
The two lives must be designated. This may be done either by naming two persons inparticular, or else by describing aclassof persons, and bounding the suspense of alienation by the lives of thetwo firstwho shall die out of the class. The limitation may be restricted for a shorter period than two lives—it may be for a single life. The estate may also be limited so as to depend on some event besides life, provided it must vest within two lives; as an estate to A for ten years, if B and C, or either of them, shall so long live; here, the estate may determine either by the lapse of the ten years, or by the death of B and C; but it can in no event exceed two designated lives. So, an estate during minority, widowhood, or other stage of existence, through whichtwoindividuals may pass, would be good, because it could not by any possibility extend beyond two designated lives.[226]
These technical rules have rendered many a noble scheme abortive, and frustrated the benevolent and reformatory intentions of many a testator.
In the following instance, a testator’s paternal solicitude for the reform of a wayward son, and his disapproval of his mode of life, were emphatically expressed; and an unfortunate oversight of this inflexible rule hindered the restraint the parent thought to place on his son after his decease. The father, however, with the usual confidence of a parent, had not abandoned all hope as to his ultimate recovery, for he thought fit to make him one of his executors, and thus placed him in the rather novel position of being a censor of his own conduct.
In the seventh clause of his will, after certain clear devises and bequests to other persons, was this recital and provision, viz: “Whereas, my son P, to whom sundry bequests are made in the following will, has unfortunately contracted habits of inebriation, and in consequence of which, I fear he would squander or misuse the bequests to him made, I do, therefore, annul and make void this will as to him, unless he reforms and continues a sober, industrious, and moral man, for the space of two years after my decease, giving to my executors satisfactory evidenceand assurance of a thorough reformation. And, therefore, it is my will, that the property so willed to him should be held in trust for him, not to exceed three years after my decease; and if within that time such reformation does not take place, I desire my said executors to divide his portion among such of my heirs as may seem to them most to need and deserve the same.”[227]
It was held that this provision of the will was void, both as atrust, and as apower in trust; and that the son took the bequest notwithstanding.
The court deemed it “an unusual and extraordinary provision”; and as the period of suspension was measured by time alone, and not bylife, this of itself rendered the provision nugatory.
It has been decided that if a bequest be made to certain trustees, to hold during the life of two persons designated, or until the legislature incorporate a hospital during the lifetime of the said persons, it is good.[228]It was in this way the will of Mr. Roosevelt was drawn, through which the Roosevelt Hospital in New York was founded. He bequeathed the residue of his estate, after other bequests, to nine trustees, five of whom were presidents of certain charitable institutions, for the establishment of an hospital for the reception and relief of sick and diseased persons, and directed them to apply to the legislature for a charter to incorporate the same, and in case the legislature should refuse to grant this within two years nextafter his death,provided two lives named in his will should continue so long, then the trustees were to pay over the same to the United States for a similar purpose.
It was held that this provision did not violate the statute of perpetuities, but that the corporation could take only in case the charter was granted within the two lives named. There was no need to consider the validity of the devise to the United States. The charter was granted in February, 1864, and now the hospital stands conspicuous among the charities of New York city.
An oversight in the observance of this rule against perpetuities caused the failure of a grand and meritorious scheme conceived by the late Mr. Rose of New York. He died in 1860, and left a large amount of property—estimated at two millions of dollars—to found an institution called the “Rose Beneficent Association,”[229]whose object it was to educate and train waifs picked up on the streets, and make them useful citizens. He gave the bequests upon the contingency of raising $300,000 from other sources withinfive years. If that sum was not so raised, the estate was given to other charitable beneficiaries. The utmost limit of the suspension was five years, but it was not circumscribed by lives as the Statute of Perpetuities requires, and it was adjudged to be void. It should be stated as a warning that this will of Mr. Rose was drawn by himself.
The case occupied a long time in litigation, and the subject of charitable bequests was most exhaustively examined.[230]
Revocation of Wills.
It is one of the well-understood qualities of a will, at the present time, that it is revocable during the testator’s lifetime. It was shown, in a former part of this work, that this quality did not in early times attach to a will; that a will, at first, was in the nature of an executed contract; a conveyance, in fact, and irrevocable.[231]However, as a will has no effect until death, it necessarily follows that a person has full control of the subject-matter, and can change his mind as he pleases regarding its disposition so long as he lives. This is now accepted as a postulate in the law of wills.[232]The only inquiry, therefore, will be as to what acts or occurrences shall be deemed sufficient to revoke a will previously made.
There are two modes in which a will may be revoked:First, it may be revoked by the happening of some events subsequent to the making as, in the judgment of law, will amount to a revocation. Wemay term this an implied revocation.Secondly, it may be revoked by a certain deliberate act of the maker, intending to cancel a previous will, or withanimo revocandi, as the legal phrase is.
The events which would operate to produce an implied revocation of a will were formerly a subject of wide and constant discussion. The courts in England, and until lately in this country, occupied themselves very frequently in discussing this subject of implied revocation, and, for a long time, there was no general agreement on the precise events that would, in the judgment of law, amount to a revocation. At an early period in the English law, it was determined that the marriage of afeme solewas sufficient to revoke a will made by her previous to her marriage. It was expressed thus, in the quaint language of the time: “It was adjudged, on great deliberation, that the taking of a husband, and the coverture at the time of her death, was a countermand of the will.”[233]This enunciation of the law has ever since prevailed as a principle in the law of wills. But a similar marriage in the case of a man did not have the same effect. The courts were at first not agreed as to whether the birth of a child after the making of a will would be sufficient to effect a revocation. In one case, it was decided that this event alone did not amount to a revocation;[234]but in another case, where there werefourchildren born subsequently to the making of the will, this, combined with other circumstances, was held to be a revocation.[235]It came to pass that thecourts became finally agreed on the question that marriage, together with the birth of issue, was sufficient to effect a revocation of a will.[236]
In the application of this rule, cases of great hardship have sometimes occurred; but it has been steadily adhered to, even under circumstances in regard to real estate, at least; as where the testator left his wifeenceintewithout knowing it, as was the case in Doe v. Barford, above, where Lord Ellenborough held that the birth of a childalone, even under these circumstances, was not sufficient to revoke the will which was made after marriage. He said: “Marriage, indeed, and the having of children, whereboththese circumstances have occurred, has been deemed a presumptive revocation; but it has not been shown that either of themsinglyis sufficient. I remember a case some years ago of a sailor who made his will in favor of a woman with whom he cohabited, and afterwards went to the West Indies, and married a woman of considerable substance; and it was held, notwithstanding the hardship of the case, that the will swept away from the widow every shilling of the property, for the birth of a child must necessarily concur to constitute an implied revocation. In Doe v. Lancashire, 5 T. R. 49, it was adjudged that marriage and the pregnancy of the wife, with the knowledge of the husband, and the subsequent birth of a posthumous child, came within the rule, the same as if the child had been born during the parent’s life.”
This subject was elaborately examined byChancellor Kent, in the case of Brush v. Wilkins,[237]where the authorities from the earliest times were quoted and examined, and the same conclusion reached.
This inquiry is not of much practical importance now, either here or in England, for statutory enactments have laid down the law precisely and satisfactorily as to what circumstances shall be deemed sufficient to produce the revocation of a will. And this is very desirable, since much uncertainty and discussion is thereby avoided, and the devolution of property exactly determined.[238]There is scarcely a State we know of where statutes have not been passed, setting the matter at rest, and fixing the law on the subject.
By the recent English statute, wills are held absolutely revoked by the subsequent marriage of the testator, whether made by a man or woman, unless such will be made in execution of certain powers; and it is further provided that no will shall be revoked, by any presumption of intention, on the ground of an alteration of circumstances.
In the statutes of the different States there is this difference: In some, the birth of a child after making a will, where such child is unprovided for, will work a revocation; while in others, it will onlyrevoke itpro tanto, that is, so as to allow the child to have the same share as if the parent died intestate.
In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids the willin toto.[239]
By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, and California, children born after the making of the will inherit as if the parent died intestate, unless the will comprises some provision for them, or they are particularly referred to in it. The will is thus revokedpro tanto.[240]
In Virginia and Kentucky, the birth of a child after the will, if there were none previously, revokes the will, unless the child dies unmarried or an infant.[241]
The statute law of some States goes further, and entitles not only children but theirissueto claim portion of testator’s estate, if such children were unprovided for, and unmentioned in the will. This is the case in the California code,[242]and in Maine, New Hampshire,[243]Rhode Island, and Massachusetts.
By the New York revised statutes, if a will disposes of the whole estate, marriage and the birth of a child revoke the will, if either the wife or child survive the testator.[244]Parol evidence is not admissible to rebut this presumption. Wherever the question has arisen, it has generally been held,even in the States where by statute children omitted in the will of the parent are entitled to the same share of his estate as if he had died intestate, that marriage and the birth of issue, after the making of a will, do amount to an implied revocation of the will.[245]
In many of the States, marriage alone, after making the will, amounts to a revocation. In Virginia, it is revoked by marriage;[246]also, in West Virginia; so in California, unless a provision be made for the wife.[247]In others, it only revokes the willpro tanto, as in Pennsylvania and Delaware.[248]In the State of Illinois, where the husband and wife are made heirs to each other, marriage by the testator after making his will, wherein no provision in contemplation of such new relation exists, amounts to a revocation.[249]The marriage of a woman after making her will, will produce a revocation in general. It is so in New York and California;[250]and in California it is not revived by death of the husband. This provision is in harmony with the early cases in England.[251]
It must not be inferred from the previous statement that a testator has no power to disinherit or cut off a child. The law does not withhold this power; it only presumes, by the omission tomention the name of a child in a will, that the claim of that child was overlooked by the testator, and the court, exercising its equitable power, interferes on behalf of such child to see it gets its due share of the property. But where the intention is expressed, and much more so where a reason is given, for cutting off a child from a participation in a testator’s property, the courts cannot interfere in behalf of such disinherited child, unless on some imputation of insanity or undue influence.
Another, and a more usual mode in which a will may be revoked, is by an express deliberate act of the testator. This may be done by a subsequent testamentary document, or by some physical destruction or cancelation of the will. A very common phrase used in a will is: “And I hereby revoke all former and other wills and testamentary dispositions by me at any time heretofore made.” However, the insertion of a clause like this is not of much importance, as a will professing to dispose of thewholeof a testator’s property necessarily displaces and supersedes all antecedent testamentary instruments.[252]Such a clause might be useful in those instances in which the intention to dispose of the entire estate was not so clearly manifested as to preclude attempts to adopt, wholly or partially, the contents of former wills as part of the testator’s disposition; since a will may be composed ofseveralpapers ofdifferentdates, eachprofessing to be such when they are capable of standing together.[253]
Mere proof of the execution of a subsequent will, therefore, is not sufficient to invalidate a prior will. There must be proof of a clause of revocation, or there must be plainly contrary or inconsistent provisions.[254]And where the contents of the last will cannot be ascertained, it is not a revocation of the former will. This was decided by the Court of King’s Bench in England, more than one hundred and fifty years ago, in the case of Hutchins v. Bassett;[255]and that decision was subsequently affirmed upon a writ of error in the House of Lords. In the subsequent case of Harwood v. Goodright,[256]which came before the Court of King’s Bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained; although it was found by a special verdict that the disposition which the testator made of his property by the last will was different from that made by the first will, but in what particulars the jurors could not ascertain. This case also was carried to the House of Lords upon a writ of error, and the judgment was affirmed. As these two decisions of the court ofdernier resortin England were previous to the Revolution, they conclusively settle the law on this subject here.[257]
Again, where there are several codicils or other testamentary papers of different dates, it is a question of intention upon all the circumstances of the case, which and how far either is a revocation of another, or whether the dispositions of the latter are to be considered as additional and cumulative to those of the prior. Parol evidence, however, is not to be admitted in order to investigate theanimuswith which the act was done, unless there is such doubt and ambiguity,on the face of the papers, as requires the aid of extrinsic evidence to explain it.[258]
In a late case,[259]the subject of receiving parol evidence in regard to the fact and intent of the revocation of wills, is very carefully examined, and the principle declared, that where the testator executed a will, and subsequently executed another, which he took away with him, and which on his decease could not be found, the earlier one being found, that the solicitor who drew the will, or any other witness familiar with its contents, might give evidence thereof; and it appearing that the provisions of the later one were inconsistent with those of the former, it was held to amount to a revocation. The practice, in the American courts, of receiving parol evidence of the contents of a lost will, seems to be universal, and without question, notwithstandingthe stringent statutory requirements in regard to the mode of executing wills.[260]The evidence must come from witnesses who have read the will, and whose recollection of its contents is trustworthy.[261]But in cases of fraud, more indulgence is allowed to the proof, and in Jones v. Murphy,[262]the court said: “It is better, surely, that a person should die intestate than that the spoliator should be rewarded for his villainy.” The English courts do not grant the same indulgence to admit alleged lost wills to probate. In a late case, where the contents of the will were propounded for probate after a delay of seven years, and no sufficient explanation given of the manner or cause of the loss, and when no draft of the will could be produced, but only oral proof of its contents, due execution, and that it could not have been revoked, probate was denied.[263]
The question as to what extent a codicil shall control the provisions in the will is not always easy of solution. Each case depends almost exclusively upon its own peculiar circumstances, and will not, therefore, be much guide to others, unless the facts are very similar. But the general rule of construction is that already stated, to allow all theprovisions of the will to stand which are not inconsistent with those of the codicil, and in determining this, to seek for the intention of the testator, as far as practicable.[264]Where a codicil refers to the former of two inconsistent wills, by date, as the last will of the testator, it has the effect to cancel the intermediate will, and evidence of mistake cannot be admitted.[265]Where a codicil named the wife as “sole executrix of this my will,” it was held that the appointment of other executors in the will was revoked.[266]
It has been held that a revocation is not valid, in most of the American States, unless done with the same formality required in the execution of the will itself.[267]
Thus, writing the word “obsolete” on the margin of his will by the testator, but without signing the same in any of the modes allowed by law, will not amount to a revocation.[268]
In a somewhat recent case in Pennsylvania, the question of revocation arose, in regard to a bequest to charity.[269]The court held that, where there are two wills, in some respects inconsistent, the latter revokes the former only so far as they are inconsistent with each other, unless there is an express clause of revocation. But where the property given specifically in the first will is, in the second, contained in a general devise to the same objects, andfor the same purpose, and the appointment of other executors, there is a manifest inconsistency, and it evinces an intention that both wills should not stand.
Many times it happens that a testator, dissatisfied with an executor or devisee named in his will, erases the name of such executor or devisee; but this will not always effect his purpose, as it should be done by a subsequent codicil, properly executed. Thus, where a testator (without a republication of his will) made alterations and corrections in it, with the intent, not to destroy it, but to enlarge and extend a devise already made, it was held not a revocation of the devise.[270]
The physical destruction or cancelation of a will by a testator is the most palpable and unmistakable mode of its revocation. In what manner or in what different modes this may be done was first laid down in the Statute of Frauds, where revocation was to be effected by “burning, canceling, tearing, or obliterating” the will. These four phrases have been generally adopted and inserted in our statutes, with either some modification or enlargement.
The enumeration of these several modes for the destruction of a will by a testator, to amount to its revocation, has not prevented controversy anduncertainty; for law cannot define acts in words so precisely and unmistakably as to preclude all doubt and quibbling. There are sure to be some who will play upon words—a mental recreation to which legal minds are somewhat given—and who will insist upon an exact literal conformity when a revocation is sought to be maintained under this provision. It would seem to an ordinary mind hardly possible to admit of a doubt thatcuttinga will was, in effect, equivalent totearing; yet a legal quibble went so far as to question this, when it became necessary to decide that cutting was, in effect, the same as tearing.[271]Probably, the legislature of West Virginia took into consideration a knotty question of this kind, and took good care to save a legal luminary stumbling over a question of this sort; for, by the statute of that State, it is provided that a revocation in this manner may be effected by “cutting, tearing, burning, obliterating, canceling, or destroying the same.”
To avoid any limited construction of the words as used in the English Statute of Frauds, it is generally provided in our statutes that a revocation may be made as in that statute, or byotherwise destroyingthe will.[272]This cuts off a great deal of uncertain construction, and removes a great temptationfor fine legal distinctions. In the New York statute, a revocation is effected in this way, if the will isburnt, torn, obliterated, canceled, or destroyed, with intent and for the purpose of revoking the same.[273]
The statute very wisely requires two things to be combined before it concludes that a will is revoked. There must be theactof destruction with theintent, or theanimo revocandi, as the law terms it. Under the English statute, it had been determined that the mere acts named will not constitute a valid revocation unless done with the intent to revoke.[274]Lord Mansfield here explains very graphically the acts which might often occur, which would destroy the writing, but would not amount to a revocation of the will; as, if a man were to throw ink upon his will instead of sand; or, having two wills, of different dates, should direct the former to be destroyed, and by mistake the latter is canceled. In neither case would it amount to a revocation of the will, although the writing were irrevocably gone.
Revocation is an act of the mind which must be demonstrated by some outward and visible sign. The statute prescribes what those signs are. If any of these are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation.[275]
It would be manifestly a harsh and an unjustconstruction to place upon the statute, that because a will was destroyed in any one of the modes pointed out, that a strict interpretation required a revocation. Hence, where the destruction was done unadvisedly, or by some other casualty, it was held, it could not amount to a revocation. Thus, where a will was gnawed to pieces by rats, but the pieces, being collected, were afterwards put together, the will was admitted to probate.[276]
And in Perkes v. Perkes,[277]a testator having quarreled with a person who was a devisee in his will, in a fit of passion took the will out of the desk, and, addressing some words to a bystander, tore it twice through, but was prevented from proceeding further by the interference of the other person and the submission of the devisee; and he then became calm, put up the pieces and said: “It is a good job it is no worse”; and after fitting the pieces together, added: “There is nothing ripped that will be any signification to it.” The jury found that the act of canceling was incomplete at the time the testator was stopped; and the court was of opinion that that conclusion was right, and that the will was not revoked.
Where a testator, with an intent to revoke his will, endeavors to destroy it in some of the modes pointed out, but through the fraud, imposition, or other deception of a person; the act is prevented being completed, it shall not prevent a revocation. The following case is a striking one, and illustratesthis principle. A testator, (who had for two months declared himself discontented with his will) being one day in bed near the fire, ordered M W, who attended him, to fetch his will, which she did and delivered it to him, it being then whole, only somewhat erased. He opened it, looked at it, then gave it something of a rip with his hands, and so tore it as almost to tear a bit off, then rumpled it together, and threw it upon the fire, but it fell off. It must soon have been burnt, had not M W taken it up, which she did, and put it in her pocket. The testator did not see her take it up, but seemed to have some suspicion of it, as he asked her what she was about, to which she made little or no answer. The testator, several times afterwards, said that was not and should not be his will, and bid her destroy it. She said at first, “so I will, when you have made another”; but afterwards, upon his repeated inquiries, she told him that she had destroyed it, though in fact it was never destroyed, that she believed he imagined it was destroyed. She asked him who his estate would go to when the will was burnt; he answered, to his sister and her children. He afterwards told a person that he had destroyed his will, and should make no other until he had seen his brother, J M, and desired the person to tell his brother that he wanted to see him. He afterwards wrote to his brother, saying, “I have destroyed my will, which I made, for upon serious consideration, I was not easy in my mind about that will,” and desired him to come down, saying, “If I die intestate, it willcause uneasiness.” The testator, however, died without making another will. The jury, with the concurrence of the judge, thought this a sufficient revocation of the will, and on a motion for a new trial it was so held, and that throwing it on the fire, with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute.[278]
The English courts are more strict in requiring a substantial compliance with the statute than our courts are. In the American cases, the intention is looked upon as the most material and controlling element: as where a testator asked for his will on his sick bed, and was handed an old letter, which he destroyed, supposing it to be his will, it was held to be a good revocation.[279]
And where a testator threw his will upon the fire,animo revocandi, and it was taken off and preserved, before any words were burned, and without the testator’s knowledge, it was decided, by a very able court, that it did amount to revocation.[280]So, where a testatrix burns a paper, which she supposes to be her will, and by mistake or the fraud of others burns a different paper, and remains under this misapprehension during her life, it amounts, in law, to a revocation.[281]But in a case in Vermont it was held that the mere intention or desire to revoke one’s will, until carried into effect in the mannerprescribed in the statute, can have no effect; however, if such intention is defeated by fraud, a court of equity will prevent a party moving from any benefit of such fraud.[282]
The two words “canceling” and “obliterating” have occasioned more uncertainty than the others used in the statute, because it is not so easily or exactly determined what acts shall amount to a cancelation and what to an obliteration of the will. In one case, the will was found with another testamentary paper, but the place in which the names of the attesting witnesses should have appeared, upon the latter, was scratched over with a pen and ink, so that no letter of a name could be deciphered: it was held that this paper was thereby revoked, and the will was admitted to probate alone.[283]
It seems to be settled, that from the fact of interlineations and erasures appearing upon the face of a will, no such presumption arises, as in the case of deeds and other instruments, that they were made before execution. But in regard to a will the case is different. Hence, where the testator makes an alteration in his will by erasure and interlineation, or in any other mode, without authenticating such alteration by a new attestation in the presence of witnesses, or other form required by the statute, the will, therefore, stands in legal force the same as it did before, so far as it is legible after the attempted alteration,[284]but if the former reading cannot bemade out by inspection of the paper, probate is decreed, and such illegible portions are treated as blanks.
In a case in Pennsylvania,[285]where the will was found in the testator’s private desk, with the seals of the envelope broken, and a black line drawn through the name of the testator, and there was no evidence how or with what intent it was done, it was held a sufficient revocation. Vice-Chancellor Wood, in a case in New York,[286]decided that where a testator, having torn off the signature from the first four sheets of his will, and struck his pen through the signature upon the remaining sheet, theanimus revocandibeing proved, it was a sufficient revocation.
The clearest statement of the law on this head was made by an eminent judge, whose language very clearly sums up the law. Chief Justice Ruffin, in a case in North Carolina,[287]says:
“The statute does not define what is such a cancelation or obliteration as shall amount, conclusively, to a revocation of a will. Burning, or the utter destruction of the instrument by any other means, are clear indications of purpose which cannot be mistaken.
“But obliterating may be accidental, or may be partial, and therefore is an equivocal act, in reference to the whole instrument, and particularly to the parts that are unobliterated. So, canceling, bymerely drawing lines through the signature, leaving it legible, and leaving the body of the instrument entire, is yet more equivocal, especially if the instrument be preserved by the party, and placed in his depository as a valuable paper. It may be admitted that the slightest act of cancelation, with intent to revoke absolutely, although such intent continue but for an instant, is a total and perpetual revocation, and the paper can only be set up as a new will. But that is founded upon the intent. Without such intention, no such effect can follow; for the purpose of the mind gives the character to the act. When, therefore, there appears a cancelation, it becomes necessary to look at the extent of it, at all the conduct of the testator, at what he proposed doing at the time, at what he did afterwards.... For, although every act of canceling imports,prima facie, that it is doneanimo revocandi, yet it is but a presumption which may be repelled by accompanying circumstances.”
There seems to be no question, according to Jarman,[288]that, under the Statute of Frauds and other similar statutes, aspartsof an entire will may be revoked, in the same mode the whole may be so revoked. The same rule has been adopted in this country, to some extent. The question was ably examined by Surrogate Bradford, in a case in New York.[289]In that case, a testator, after his will had been prepared and executed, becoming dissatisfied with one of the devisees, his own daughter, struckout the devise to her, which was contained in these words: “To my beloved and only daughter, Sarah Ann McPherson, I give and bequeath,” etc. In a note to the foot of the page, he gave as a reason for striking out this devise, the bad treatment of his daughter, and afterwards altered a phrase in his will where “children” was used, and substituted “sons” instead, so as to exclude the said daughter. In examining this question, the learned Surrogate assumed that apartof a will might be obliterated in the same mode as the whole, and referred to various decisions in support of this view. He, however, held that, as the subsequent alteration, substituting “sons” for “children,” was invalid, not having been re-witnessed, as is required, that the obliteration of the devise was not effectual as to that part, and could not be treated as a revocation.
In Kentucky, in the case of Brown’s Will,[290]it was declared that a cancelation of a portion of the devises, the testator’s signature being left untouched, did not affect the residue of the dispositions, which remained unaltered, the testator’s intention not to revoke them being clearly established.