Blackett v. Ziegler

• Decision Date: 18 December 1911
• Citation: 133 N.W. 901,153 Iowa 344
• Parties: BLACKETT v. ZIEGLER ET AL.
• Court: Iowa Supreme Court

153 Iowa 344

133 N.W. 901

BLACKETT

v.ZIEGLER ET AL.

Supreme Court of Iowa.

Dec. 18, 1911.

Appeal from District Court, Fayette County; L. E. Fellows, Judge.

Action to set aside the probate of a will. There was a judgment for the defendants. Plaintiff appeals. Affirmed.V. T. Price and C. S. Blackett, for appellant.

Ainsworth & Hughes and Clements & Estey, for appellees.

DEEMER, J.

Elizabeth W. Lewis, now deceased, made a will in the year 1895. Thereafter, and in 1904, she made another, which disposed of her estate, and contained a clause revoking the will of 1895. She retained both wills until the year 1905, when she destroyed the one of 1904 by burning it, and about the same time executed the following paper: “To the Judge of the District Court of Fayette County, Iowa: I hereby request you in case of my death to appoint S. B. Ziegler, of West Union, Iowa, as administrator of my estate without giving bonds.” This she signed, and her signature was witnessed by two witnesses. The will of 1904 was left in the possession of a Mr. Preston, who drew it, until December of that year, when testatrix requested Mr. S. B. Ziegler, who had drawn the first will and had it in his possession, to get the second one from Preston, which he did, and Ziegler took both wills to Mrs. Lewis' home, where each one was read to her, clause by clause, in the presence of Mr. and Mrs. Caldwell, the persons who witnessed the paper which we have heretofore set out, and after some discussion Mrs. Lewis said that she wanted the first will to stand, and she directed Ziegler to destroy the second one, which he did in her presence, and in the presence of the Caldwells. After the destruction of the second will, Mrs. Lewis said to Mr. Ziegler: “There is no executor in this will that stands. * * * I want you to act as my executor; you have always done my business for a great many years, and I want you to act.” Mr. Ziegler made the objection that he did not care to act as executor of the will, because of the necessity of giving a bond, whereupon Mrs. Lewis said that he did not need to give a bond. The writing was then prepared by Mr. Ziegler, and was executed and witnessed as shown. This so-called codicil does not seem to have been attached to the will, but it was kept by Mr. Ziegler, and was presented for probate with the will. The first will was admitted to probate, and this action is brought to set aside the order. The trial court denied the relief asked, and plaintiff appeals.

The questions presented are new to this court and some of them are the subject of many conflicting and irreconcilable decisions. In the absence of statute governing some of the matters arising upon the appeal, it may be said that there is no general rule, and that each court for itself has found it necessary to fix the rule for that jurisdiction. The relevant statutes of this state are as follows:

“All other wills, to be valid, must be in writing, signed by the testator, or by some person in his presence and by his express direction writing his name thereto, and witnessed by two competent persons; but if a codicil is duly executed to a will defectively executed and clearly identified in such codicil, the will and codicil shall be considered one instrument and the execution of both sufficient.” Code, § 3274.

“Wills can only be revoked in whole or in part by being canceled or destroyed by the act or direction of the testator; with the intention of so revoking them, or by the execution of subsequent wills. When done by cancellation, the revocation must be witnessed in the same manner as the making of a new will.” Code Supp. § 3276.

Section 3274 is quoted because of its bearing upon the claim that the paper heretofore set out is a codicil to the first will, and, having been executed after the destruction of the will of 1904, it amounted to a republication of the first will. As to that, more hereafter.

It is admitted that the first will was never destroyed by the maker, and it is also conceded that the second will contained an express revocatory clause of the first will, and that this second will was absolutely destroyed by burning. These being the undisputed facts, the questions involved are: (1) Was the first will republished by the paper hitherto quoted, which, it is claimed, is a codicil to that will? (2) Did the destruction of the second will under the circumstances disclosed amount to a revivor of the first will?

[1][2] Every one concedes that a will expressly revoked by a subsequent will or other instrument of revocation may be republished or revived by the re-execution thereof, or by a codicil executed in accordance with statutory requirements for the execution of wills, showing an intention to revive the same. When done by a codicil, an intent to republish or revive the former will must be shown, and this may be inferred from any reference which makes such intent obvious, as, by reference to “my will,” or to the will by date. Crosbie v. McDonal, 4 Ves. 610; Payne v. Payne, 18 Cal. 291. And the codicil need not be attached to the will. Van Cortlandt v. Kip, 1 Hill (N. Y.) 590;Pope v. Pope, 95 Ga. 87, 22 S. E. 245;Appeal of Wikoff, 15 Pa. 281, 53 Am. Dec. 597. But, if not attached, there must be such reference to the will intended to be republished as to identify it, or to furnish the means for identification, without resort to any other testimony, save to show that the document sought to be incorporated is identical with that referred to in the will. The codicil itself must refer to the paper sought to be incorporated, if it be then in existence. Newton v. Seamen's Society, 130 Mass. 91, 39 Am. Rep. 433;Damon v. Bibber, 135 Mass. 458;Parrott v. Avery, 159 Mass. 594, 35 N. E. 94, 22 L. R. A. 153, 38 Am. St. Rep. 465;In re Sohor, 78 Cal. 477, 21 Pac. 8; Crosby v. Mason, 32 Conn. 482; Booth v. Church, 126 N. Y. 215, 28 N. E. 238; Allen v. Maddock, 11 Moo. P. C. 427, 4 Gray's Cases, 198; Goods of Sunderland, 4 Gray's Cases on Property, 217; In re Young's Estate, 123 Cal. 337, 55 Pac. 1011;In re Andrews' Will, 162 N. Y. 1, 56 N. E. 529, 48 L. R. A. 662, 76 Am. St. Rep. 294.

This is doubtless the rule intended to be announced by Code, § 3274, hitherto quoted. In other words, all wills must, as a general rule, be in writing, duly signed and attested; and if a codicil is relied upon for a publication it must clearly identify the will, and parol testimony is not admissible, in the absence of any attempt to identify the will in the codicil. These being the rules announced by all of the authorities, it is apparent that the written instrument executed by Mrs. Lewis, either contemporaneously with or after the destruction of the second will, cannot be treated as a codicil to the first one, because it was not attached to nor did it refer in any manner to the prior will.

[3] Moreover, the paper itself does not indicate any intent on the part of the maker to revive a former will. Construed without reference to the other testimony, it indicates a thought on the part of the maker that Ziegler should act as administrator of her estate without bond. If it means anything, this would seem to indicate that the maker wished her estate to be administered upon according to law, and not under any will. Manifestly this so-called codicil cannot be considered a republication of the first will.

[4] The second question presented is much more difficult of solution. Shortly stated, it is this: Does the destruction or cancellation of a second will, containing an express revocation of a former one, in itself revive the first or former one? Upon no subject relating to the law of wills are the authorities in such hopeless and irreconcilable conflict. A learned text-writer has thus stated the law of England as it existed prior to the adoption of the statute known as 11 Vict. c. 26, § 22:

“The English law prior to statutes upon this difficult question was in great confusion. The ecclesiastical courts seemed disposed to hold, in cases of testaments, that no presumption arose, either for or against the validity of the first will, upon such a state of facts, and that the question was to be settled by the intention of the testator as disclosed by the evidence. The common-law tribunals in dealing with wills were inclined to adopt the theory that the revocation of the second will raised a presumption that testator thereby intended the first will to be in full force and effect. This was a prima facie presumption only, and might be rebutted by evidence of a contrary intention. The two sets of tribunals thus seemed to agree that the testator might revive his first will by the revocation of his second, if he intended to do so. Further doubt, however, arises upon attempting an analysis of the earlier English cases for two different reasons: First, it is not always clear whether the English courts are discussing a case where the second will expressly revoked the first, or where it was merely inconsistent with it. Second, in many of the cases, especially in the ecclesiastical courts, the declarations of the testator might have been sufficient to republish his first will, as no set form was required for the execution of wills of personal property. It is therefore at times hard to determine whether the first will is valid, because it has been republished after the revocation of the second will, or whether the mere revocation of the second will, with intent to revive the first, revived it without republication.

“This condition of uncertainty upon an important and often occurring question was ended in England by the statute 1 Vict. c. 26, § 22, which provides in substance that a will once revoked can be revived, but by a new codicil, or re-execution. This statute has always been held to apply with equal force to a will revoked either by a later will containing a clause of revocation, or by a later inconsistent will. Where such a statute is in force, the revocation of a later will by a testator who intends...