Sanderson v. Norcross

• Decision Date: 01 July 1922
• Citation: 242 Mass. 43,136 N.E. 170
• Parties: SANDERSON v. NORCROSS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 43

136 N.E. 170

SANDERSON

v.NORCROSS.

Supreme Judicial Court of Massachusetts, Plymouth.

July 1, 1922.

Appeal from Probate Court, Plymouth County.

Proceeding by Kendall A. Sanderson against Burt F. Norcross, administrator, for the proof and allowance of an alleged will of Otis L. Norcross, claimed to have been revoked. From a decree disallowing the will, the petitioner appeals. Affirmed.Kendall A. Sanderson, and Bates, Nay, Abbott & Dane, all of Boston, for appellant.

Coughlan Brothers, of Abington, for appellee.

RUGG, C. J.

This is a petition for the proof and allowance of a will. The pertinent facts are that Otis L. Norcross, an intelligent business man, in October, 1913, duly executed the will here offered for probate. Thereafter it remained exclusively in his possession until his death in April, 1919. It then was found in his safe as left there by him, with the signature scratched out, with lines drawn through the names of the witnesses and through two bequeathing paragraphs in the body of the instrument, and with these words written on the margin in the handwriting of the testator: ‘This will is void as I have made a later one. Otis L. Norcross.’ No later will was found, but in the safe with this instrument was an undated memorandum containing provisions identical with the original will except that it lacked one of its bequeathing paragraphs, being one of the two through which lines were drawn, a different person was named as executor, there was no in testimonium clause and no clause for witnesses, and it was neither signed nor witnessed.

Every question of fact is resolved against the petitioner by the decree disallowing the will; but the case having been heard upon an agreed statement of facts and coming to this court by appeal, and the procedure in probate following that in equity so far as applicable, G. L. c. 215, § 21, Crocker v. Crocker, 188 Mass. 16, 73 N. E. 1068, this court stands where the judge of probate stood, and considers the case without presumption in favor of the finding below. Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420.

It has not been argued that the facts did not warrant and indeed require a finding that the will was sufficiently canceled and obliterated by the deceased to constitute a revocation. G. L. c. 191, § 8. The scratching out of the signature of the deceased and the drawing of the lines through those of the witnesses constitute a cancellation. The sentence written and signed on the margin but without witnesses would not constitute a revocation. Brown v. Thorndike, 15 Pick. 388. That sentence, however, furnishes the basis for the contention that the revocation was conditional upon the making by the deceased, or the mistaken notion that he had made, a new and valid will, and that, since that condition never came into existence, the intent to revoke never became operative, and that hence the original will stands notwithstanding the acts of obliteration.

The doctrine is widely established that a revocation of a valid will, which is so intimately connected with the making of another will as to show a clear intent that the revocation of the old is made conditional upon the validity of the new, fails to become operative if the new will is void as a testamentary disposition for want of proper execution. Revocation in its last analysis is a question of intent. A revocation grounded on supposed facts, which turn out not to exist, falls when the foundation falls. Hitherto this court has never had occasion expressly to pass upon the soundness of this precise doctrine, although it was adverted to and impliedly recognized in Laughton v. Atkins, 1 Pick. 535, 544. See, also, Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322;Wallis v. Wallis, 114 Mass. 510;Stickney v. Hammond, 138 Mass. 116, 120. It is so generally adopted that it is recognized as a part of our law without further discussion. Thompson, Appellant, 116 Me. 473, 480, 102 Atl. 303.Smith v. Runkle (N. J. Prerog.) 97 Atl. 296, 305, affirmed in 86 N. J. Eq. 257, 98 Atl. 1086;Wilbourn v. Shell, 59 Miss. 205, 209,42 Am. Rep. 363;In re Knapen's Will, 75 Vt. 146,53 Atl. 1003,98 Am. St. Rep. 808;County Commissioners v. Scott, 88 Minn. 386, 388, 93 N. W. 109;Melville's Estate, 245 Pa. 318, 325, 91 Atl. 679, L. R. A. 1916C, 98;Strong's Appeal, 79 Conn. 123, 63 Atl. 1089,6 L. R. A. (N. S.) 1107, 118 Am. St. Rep. 138;Jackson v. Halloway, 7 Johns (N. Y.) 394;McIntyre v. McIntyre, 120 Ga. 67, 47 S. E. 501,102 Am. St. Rep. 71,1 Ann. Cas. 606;Billington v. Jones, 108 Tenn. 234, 240, 66 S. W. 1127,56 L. R. A. 654, 91 Am. St. Rep. 751;Gardner v. Gardner, 65 N. H. 230, 233, 19 Atl. 651,8 L. R. A. 383;Schmidt v. Bauermeister, 279 Ill. 504, 512, 117 N. E. 49;Pringle v. McPherson, 2 Brev. (S. C.) 279, 3 Am. Dec. 713; Dancer v. Crabb, L. R. 3 P. & D. 98, 104. Dixon v. Solicitor to the Treasury, 1905 Probate Div. 42. See 33...