Bigelow v. Gillott

• Decision Date: 03 July 1877
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: George T. Bigelow & another, executors, v. Edmund Gillott & others

123 Mass. 102

George T. Bigelow & another, executors, v. Edmund Gillott & others

Supreme Court of Massachusetts

July 3, 1877

[Syllabus Material]

Suffolk. Appeal from a decree of the Probate Court for the county of Suffolk, allowing a certain instrument, with the exception of the "sixth" and "thirteenth" clauses thereof, as the last will and testament of Thomas Liversidge, deceased. The will of the testator contained the following clauses:

"Sixth. I give to my executors the sum of six thousand pounds sterling, in trust, to be used and appropriated by them for the purpose of paying the debts which my father, Stephen Liversidge, owed in the year eighteen hundred and twenty-nine, said payment to be made to the legal representatives of the persons who were his creditors at the time: and it is my will and I hereby direct, that the principal only of said debts shall be paid, excluding interest; the sum of six thousand pounds being, in my opinion, sufficient for this purpose. If any portion of said six thousand pounds shall remain after payment of said debts such remainder is to belong to the residue of my estate, and to be disposed of accordingly by said trustees."

"Thirteenth. I give and bequeath to John Shufeldt, of Marshfield in the County of Plymouth, the use and improvement of the estate and farm belonging to me in said Marshfield, during the term of his natural life, on the condition that said Shufeldt shall pay all taxes and cost of insurance appertaining to said estate, and shall continue to live thereon and occupy and cultivate the estate."

[The nineteenth clause gave his homestead estate to trustees to maintain a charitable institution. ]

"Twentieth. I give, bequeath and devise all the rest, residue and remainder of my estate of every description, of which I shall die seised and possessed, to said Eleazer J. Bispham Frederic A. Wellington and George Tyler Bigelow, absolutely and forever, in trust, nevertheless, to be appropriated, used and applied for the maintenance and support of the institution named and described in the last proceeding clause of this will."

The appellants, the heirs at law of the testator, filed certain reasons of appeal, the following being the only one relied on in this court:

"That, it having clearly appeared by the evidence before the Probate Court that the obliterations in said paper writing were made subsequently to the execution thereof, as the last will and testament of the alleged testator, and that no reexecution took place after said obliterations were made, the Probate Court, as it decreed the probate of the will, excepting the sixth and thirteenth clauses, should also have decreed that the portion of the estate originally disposed of under said sixth and thirteenth clauses, remained undisposed of by the testator at the time of his death, and passed to his heirs at law."

Hearing before Colt, J., who found that the will was duly executed on or about the time of its date, in the manner required by law, by Thomas Liversidge, as and for his last will and testament, and that he was at the time of executing the same of full age and of sound mind; that in the will, as presented for probate, ink lines appeared, drawn probably with a pen, through and across each and every word constituting the clauses of the will, numbered respectively "sixth" and "thirteenth," leaving the words, however, legible; that the lines were drawn across the words by Liversidge in his lifetime, after the execution of the will by him as aforesaid; and, on all the evidence bearing upon the intention of the testator in making these erasures, and upon the inspection of the original will, found, if competent so to find, that the erasures were made by the testator with the intention of revoking the sixth and thirteenth clauses of his will, but with no intention of revoking or defeating the other provisions of his will.

The question whether the evidence before him, (which was annexed to the report,) together with the original will, justified this finding, as well as the question, what effect those acts of the testator might have upon the will and the probate of it, were reserved for the consideration of the full court.

Decree of Probate Court affirmed.

L. S. Dabney, for the executors.

H. A. Johnson, for the appellants. 1. By the Gen. Sts. c. 92, § 6, a will, excepting in special cases, must be executed in the presence of three or more witnesses. A will, and it would reasonably seem, a part of a will, may be revoked by obliteration without witnesses. The terms of the previous statutes, from which our present statute was taken, and the decisions under them, added to the fact that no reason anywhere appears, either in the commissioners' reports or the proceedings of the Legislature thereon, why any change was desirable, would seem to indicate the intention of the Legislature to have been merely to very the language, but not the import of the statute in this respect. St. 29 Car. II. c. 3, § 6. St. 1783, c. 24, §§ 2, 6. Rev. Sts. c. 62, § 9. Gen. Sts. c. 92, § 11. The term "will," in this chapter, does not seem to be held as strictly limited in its signification, and may include in its meaning part of a will. Gen. Sts. c. 3, § 7, cl. 19. Bayley v. Bailey, 5 Cush. 245.

2. The statute cannot mean, by "revoked," that the will or bequest may not only be called back by obliteration, but that the testator may also thereby, and without witnesses, pass the estate to a new legatee, to whom he expressly did not give it before, and to whom it cannot be said in any way to pass by the act of God or by the law. Larkins v Larkins, 3 B. & P. 16. Quinn v. Quinn, 1...