Appeal of Miles

• Decision Date: 25 June 1896
• Citation: 68 Conn. 237,36 A. 39
• Court: Connecticut Supreme Court
• Parties: Appeal of MILES et al.

36 A. 39

68 Conn. 237

Appeal of MILES et al.

Supreme Court of Errors of Connecticut.

June 25, 1896.

Appeal from superior court, New Haven county; Hall, Judge.

Proceedings to probate the will of Diana M. Miles, deceased, in which there was an appeal from the probate court to the superior court, where there was a trial without a jury. From a judgment reversing the judgment of the probate court, Isabel N. Miles and others appeal. Affirmed.

William B. Stoddard and James H. Webb, for appellants.

Talcott H. Russell, for appellees.

FENN, J. Diana M. Miles, late of Milford, in this state, died in 1891, being then about 86 years of age. She left a will dated and executed February 13, 1879. This will, in addition to the formal parts and the clause appointing an executor, contained two sections only, which are as follows: "First. After all my lawful debts are paid and discharged, I give, devise, and bequeath to my nieces Susan Whittlesey and Isabel Newton, daughters of my brother Charles, to each of them ten shares of the capital stock of the New York, New Haven & Hartford Railroad Company, being in all twenty shares of said capital stock, of the par value of one hundred dollars each, to them, their heirs and assigns, forever. Second. I give, devise, and bequeath all the residue and remainder of my property and estate, both real and personal, of whatever kind and nature, to my brothers Charles, David, and Henry Carrington Miles, share and share alike, to them, their heirs and assigns, forever." When this will was presented in the court of probate, lines appeared drawn through all that part of the above-recited first section, after the words, "First. After all my lawful debts are paid and discharged, I;" that is to say, commencing with the word "give," and ending with the word "forever." The words over which said lines were drawn were in no other manner canceled or obliterated, but remained perfectly legible. The case came to the superior court on an appeal from an order and decree of the court of probate for the district of Milford, denying the application of the then appellants, that the words and clauses above referred to, through which lines were drawn, be admitted to probate, and in disapproving and disallowing said words and clauses, and in proving, approving, allowing, and admitting to probate said will without said words and clauses. The superior court rendered judgment reversing the decree of the court of probate. Prom this judgment, the original appellees appealed to this court. They thus, in turn, became appellants, and will be so regarded and styled in this opinion. The original appellants will be called the appellees.

Upon the trial in the superior court, no exceptions to rulings upon evidence, or to anything which occurred during the presentation of the case, were taken. The court made a finding of the facts upon which its judgment was based, and the sole questions of law relate to the sufficiency of said finding to support and vindicate such judgment. The claims made by the appellants are stated in the finding, and were that the facts found were sufficient in law to establish the fact that either the testatrix herself made said erasures, or caused the same to be made in her presence, and that, upon said facts found, the erasures in question constituted a valid revocation of said bequest in said will; that the legal presumption was that said erasures were made by the testatrix; and that the burden of proof was upon the appellants to show that said erasures were not made by her, or by some person in her presence, by her direction. The appellees claimed otherwise, and, further, that a portion of a will could not in this manner be revoked under the statute of this state. The statute referred to, in force at the time the will in question was made, is now part of Gen. St., § 542. It provides: "No will or codicil shall be revoked in any other manner except by burning, canceling, tearing, or obliterating it by the testator or by some person in his presence by his direction or by a later will or codicil." There must, of course, in any given case, be a will, otherwise valid and operative, before the question as to how it may be revoked will arise. There was one here, but lines had been drawn through a certain portion of it after execution, and before exhibition in the court of probate. The sole inquiry was: Did this fact operate as a revocation, not, indeed, of the entire will, but of that portion of it? It could not so operate unless the requirements of the statute had been complied with. Waiving, for the time, the question whether such cancellation, however affected, would constitute such partial revocation, it remains that, in order to do it, the act must be done by the testator, or by some person in his presence by his direction. Unless this be found, no finding that would justify a revocation exists. The court has made no such finding in this case. On the contrary, the judge said: "I do not find that said erasures were made by the testatrix or in her presence."

But the appellants urge that the court did find certain evidential facts, and that, upon these facts, the legal presumption was that the cancellation was made by the testatrix ammo revocandi, and that the burden of proving the contrary was upon the appellees. A word in explanation of this claim, as the appellants make it, may be called for. They do not assert that in every case, and at the outset, a burden rests upon the proponents of a will to prove not only the affirmative, that it was once valid, but also the negative, that it has not been afterwards revoked, either wholly or in part,—to prove the case, and anticipate and disprove the defense. This being so, they do not mean that a burden of proof is upon the appellants "in the first instance" (Knox's Appeal, 26 Conn. 20, 22),— but only a burden "shifted," if such expression is ever proper, and it is sometimes used (Barber's Appeal, 63 Conn. 393, 403, 27 Atl. 973).

The main facts upon which the appellants rely in support of this claim of a legal presumption in their favor are these: "The will in question was drawn by Charles Miles, the executor, in 1879, at the time it bears date, and remained in his possession unchanged until the fall of 1885, when David Miles, a brother of the testatrix, and one of the residuary legatees, sent for the will; and, in pursuance of his request, Charles Miles sent said will to said David. Shortly after the will was so sent by Charles Miles to David Miles, the testatrix handed to David Miles an envelope, upon the outside of which was written, 'Diana Miles' will,' and said to him, 'There is my will.' As she handed the will to David, he said to her. 'Are you satisfied with it now?' and she replied, 'Yes.' It did not further appear in evidence how or when or for what purpose the testatrix had received said will from David Miles after he had received it from Charles Miles, as aforesaid. From that time the will remained in the possession of said David Miles, until his death, in" December, 1885. A few days after the death of David Miles, at the request of the...