Bates v. Hacking

• Decision Date: 30 December 1907
• Citation: Bates v. Hacking, 28 R. I. 523, 68 A. 622 (R.I. 1907)
• Parties: BATES v. HACKING.
• Court: Rhode Island Supreme Court

68 A. 622

28 R.I. 523

28 R.I. 1

BATES

v. HACKING.

Supreme Court of Rhode Island.

Dec. 30, 1907.

Exceptions from Superior Court, Providence County.

Proceedings by James Hacking, executor, to probate the will of Peter Warren. Judgment for contestant, Elizabeth Bates, denying the probate, and the executor excepts. Exceptions sustained.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

James L. Jenks and Gardner, Pirce & Thornley (William W. Moss, of counsel), for appellant. John N. Butman and Bassett & Raymond, for appellee.

DUBOIS, J. This is a probate appeal, brought to this court upon appellee's exceptions to certain rulings of the superior court, including the following charge to the jury directing a verdict for the appellant, viz.: "Inasmuch as it appears by undisputed testimony that after the execution of the will in issue Peter Warren made and executed another will which contained a clause expressly revoking all wills theretofore made, which last-mentioned will was subsequently destroyed, and as there is no evidence that it was the intention of the said Peter Warren to revive the will in issue, the jury are instructed to find that the will in issue is not the last will and testament of the said Peter Warren, and to return a verdict for the appellant." It appears from the transcript of the testimony that Peter Warren, the testator, made four wills, to wit, one in 1893, another in 1898, a third, which is the will in issue, May 10, 1900, and the fourth about May 20, 1900; that the first and third wills are still in existence, but that the second and fourth wills have been destroyed by the testator; that the second will was burned by him on May 10, 1900, after the third will was drawn; that at the time of the execution of the fourth will the testator gave the third will to the appellee, named therein as executor and trustee, with instructions "to take care of it"; and that subsequently the testator informed the appellee that he had destroyed the fourth will by burning the same. The first will is not offered for probate, and needs no further consideration at the present time.

The question presented is whether the third will was revoked by the execution of the fourth will, which contained a clause expressly revoking all wills theretofore made; and the answer depends entirely upon Gen. Laws 1896, c 203, § 17, which reads as follows: "No will or codicil or any part thereof shall be revoked otherwise than as provided in the preceding section, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an Intention to revoke the same and executed in the manner in which a will is hereinbefore required to be executed, or by burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same." Section 16 concerns revocation by marriage, and has no application to this case. The statute relating to revocation of wills is of ancient origin, and was construed by this court in Reese v. Court of Probate (1870) 9 R. I. 435, wherein Brayton, C. J., speaking for the court, said: "The statute declares that all devises shall continue in force unless burned, etc., or unless the same be altered by some other will or codicil, or other writing of the devisor, signed in the presence of three or more witnesses, declaring such alteration. As another writing signed by the devisor, it has the same defect as where offered as a will. It has but two witnesses, while it requires three to give it validity. But the cases go further, and hold that if the writing declaring the revocation be part of a will, and executed as such, though the instrument be defectively executed, so that it cannot operate as a will, the clause of revocation cannot be set up as another writing revoking any former devise. That being executed for a will, the clause is like every other declaration therein of the testator's will and intent, is ambulatory, and the whole instrument stands or falls together. Laughton v. Atkins, 1 Pick (Mass.) 535; Eggleston v. Speke, Carthew, 79."

Thirty-seven years have elapsed since the rendition of the foregoing decision, during which time the statutes have undergone several revisions; but the provision relating to revocation of wills has not been substantially modified. This fact may fairly be taken as an indication of legislative satisfaction with the construction placed upon it as aforesaid. Acquiescence for more than a generation is sufficient approval. The statutory provisions for revocation by will properly executed, or by some writing declaring an intention to revoke executed like a will, are neither identical nor interchangeable. They differ materially, in that the former relates to a will, while the latter does not. One looks toward the future, while the other regards the present. The writing declaratory of an intention to revoke is evidence of a present intention, and, when executed, becomes of itself a complete revocation; but the revocation by will takes effect only when the will of which it forms a part becomes effective, and that can never be in the lifetime of the testator. For these reasons we are constrained to hold that the superior court erred in directing the jury to return a verdict for the appellant.

The other exceptions need not be considered, in this view of the case.

The appellee's exception is therefore sustained, and the case is remitted to the superior court for further proceedings in accordance with this opinion.

On Rehearing.

DUBOIS, J. After the rendition of our opinion in this case the appellant filed a "motion for reargument," and afterwards "additional grounds for reargument," which in fact constituted a reargument of the case in writing, whereupon the court made an exhaustive examination of the authorities governing the subject, and is thereby convinced that its former conclusions are supported by the weight of authority. It is proper, therefore, in the circumstances, to treat the matter more fully than was deemed to be necessary in our former opinion.

The authority to make a will is purely statutory. The statute of wills (St. 32 Hen. VIII, c. 1, § 2) contained no provisions on the subject of revocation. In the absence of such provisions the courts evolved a set of rules to govern the subject, founded upon the theory that the testator's intention to revoke, whether express or implied, should control. Naturally, in these circumstances, implied revocations became common, and interested parties were sometimes unable to resist the temptation to fabricate evidence of the declarations of the testator for the purpose of defeating his will. Finally, the injustice of permitting written instruments to be destroyed by oral evidence became so apparent that Parliament enacted the statute of frauds (St. 29 Car. II, c. 3), whereof sections 6 and 22 related to the revocation of wills and testaments, and our statute, referred to in the former opinion, is a substantial re-enactment of the essential portions of those sections of the statute of frauds. It is objected that the remarks of Chief Justice Brayton in Reese v. Court of Probate (1870) 9 R. I. 435, relating to the extent to which the cases go, and quoted in our former opinion, are obiter dicta, as unnecessary for the determination of the issue before the court, and therefore are of no binding force upon us as a precedent. Admitting the force of the objection, we cannot close our understandings to the logical and cogent reasoning employed by the learned Chief Justice.

The confusion concerning revocation and revival of wills that is to be found in the decided cases has arisen from a misconception of the subject The statute of frauds relating to revocation of wills was passed to maintain wills, and to prevent their revocation except as therein provided. But even after its passage the courts, ecclesiastical and of common law, did not agree in their interpretations, and the question of the revival of revoked wills was raised and became a potent factor in the confusion. This state of affairs continued in England until St. 1 Vict. c. 26, § 22, was passed, which provided for the revival and republication of revoked wills. Neither the statute of Victoria nor the civil law, which governed the ecclesiastical courts, has ever been adopted in Rhode Island. "A will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristics of wills." 1 Jarman on Wills, c. 2. "So essential a feature of a will is revocability that the insertion, in an instrument which is clearly a will, of a clause providing that it is not to be revoked, has no effect whatever in preventing revocation. This quality of the will is what is meant when it is said that the will is ambulatory." Page on Wills, § 50. As a will must of necessity be ambulatory, it follows that all attempts to restrain its ambulatory quality must fail; for a successful attempt would destroy it. A will must be perfectly free in that regard, or it ceases to be a will. It cannot be ambulatory in part. It cannot be both bond and free. Every provision contained in a will, including revoking clauses, must partake of the ambulatory character of the instrument; hence it is an unsuitable and improper vehicle for the conveyance of "a verbal act done solemnly and deliberately for present effect." See Scott v. Pink, 45 Mich. 246, 7 N. W. 799.

If, therefore, a testator chooses to insert a revoking clause in a will, it cannot take effect in his lifetime, no matter what his intentions may be. The statute gives him the choice of several ways of revocation, and he is bound by his selection. After he has made his will, the statute upholds the same until revoked in the statutory manner. It has...