Burton v. Wylde

• Decision Date: 06 February 1914
• Citation: 103 N.E. 976,261 Ill. 397
• Parties: BURTON v. WYLDE et al.
• Court: Illinois Supreme Court

261 Ill. 397

103 N.E. 976

BURTON

v.WYLDE et al.

Supreme Court of Illinois.

Dec. 17, 1913.

Rehearing Denied Feb. 6, 1914.

Appeal from Circuit Court, Cook County; Maggini Slusser, Judge.

Application by Edna C. Burton, for probate of the will of Sarah Chapman, deceased, and contested by Della Wylde and others. From a decree for probate of the will and refusing probate of the codicil thereto, contestants appeal. Reversed and remanded.

H. S. Earley, of Sycamore, George Brown and Cliffe & Cliffe, of Sycamore, for appellants.

Roy H. Brown, of Rockford, and Faissler & Fulton, of Sycamore, for appellee.

CARTER, J.

This is an appeal from a decree of the circuit court of De Kalb county admitting to probate the will of Sarah Chapman, deceased, and refusing the probate of a codicil thereto attached.

The will was executed April 11, 1895; the codicil, November 3, 1899. Sarah Chapman, the testatrix, died at 90 years of age on July 5, 1912, at her home in Kingston, De Kalb county, Ill., possessed of property valued at a little over $35,000, practically all real estate. Her husband had been dead for many years, and she left no children, her only heirs being some 30 nephews and nieces. About a week after her death, Mrs. Edna C. Burton, a niece of testatrix, with whom she was living, filed in the county court of De Kalb county a petition for its probate. Very shortly after the hearing as to the probate of the will began before County Judge William L. Pond, he recalled that he had heard a conversation with the testatrix a short time prior to her death which might make it inadvisable for him to pass upon the case. Upon consultation with the attorneys, it was agreed that, after hearing the formal proof as to the execution of the will, it should be admitted to probate, and an order entered refusing probate of the codicil without hearing any further testimony, and that an appeal should be taken to the circuit court. This was done. That the instrument in question and the codicil were originally the valid will and codicil of the testatrix, and were properly executed, and that the codicil was properly revoked, is conceded. The whole contention is as to whether the will itself was revoked.

The will was written on three pages of a double sheet of legal cap paper. The attestation clause was at the top of the fourth page, and below this a codicil had been written and attested. When the will was produced for probate, the signature of the testatrix to the codicil had been cut out with some sharp instrument, destroying at the same time certain words that appeared in the residuary clause on the other side of the page. The will gave certain real estate to Henry Carb, the nephew of the testatrix, whom she called her foster son; other real estate to her brother, Alexander H. Durham; other real estate, under certain conditions, to Jesse F. and Edgar C. Burton, and an 80-acre tract to her great-nephew, Sidney Fay Burton. Then following clause 5 as to the residue, reading:

‘Fifth-All the rest, residue and remainder of my real estate, both real and personal, I give, devise and bequeath to my niece, Edna C. Burton, and to her husband, my nephew, Charles H. Burton, to be equally divided and their heirs the child or children of a deceased child taking the share which his, her or their parents would have taken if living.’

The blank space indicates where the words were cut out of the will by the cutting out of the signature of the testatrix to the codicil on the reverse side of the page. By the codicil there was a change in the devise of real estate to Henry Carb from an estate in fee to a life interest, the life interest after his death to go to his wife, and after her decease, the remainder to their children. The proof shows that Henry Carb became insane some time prior to May, 1903, and died in 1904. The proof also shows that on June 25, 1912, ten days before her death, the testatrix deeded to Sidney Fay Burton, the son of Mrs. Edna C. Burton, the 80 acres of land given him under the will. There is no evidence in the record as to when the signature to the codicil was cut out. The document was found among the testatrix's papers after her death.

Under our statute a will or codicil can only be revoked by burning, canceling, tearing, or obliterating the same, or by some other will, and no words spoken shall revoke any will. Hurd's Stat. 1911, p. 2379.

[1] As a general rule, if a will is traced to the testator's possession, and at his death cannot be found, the presumption is that he destroyed it animo revocandi. St. Mary's Home v. Dodge, 257 Ill. 518, 101 N. E. 46;Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837. Where a will remains in the testator's possession until his death, and is then found amoung his papers, with erasures, alterations, cancellations,or tearings, the presumption is that such act manifest upon the will was done by the testator with the intention of revocation. Page on Wills, § 449; 40 Cyc. 1280, and cases cited. But all presumptions of this sort weigh lightly, and they may be rebutted by proof of actual facts. Schouler on Wills (2d Ed.) § 401.

Counsel for appellants insist that the cutting out of the signature to the codicil, and thereby cutting out a part of the residuary clause of the will, in view of all the circumstances in this case, shows clearly that testatrix intended to revoke the entire will; while counsel for appellee that the cutting out of the signature only revoked the codicil, and does not indicate, even though the will itself was slightly mutilated, that the testatrix intended to revoke the will as a whole. They further insist that any declaration of the testatrix made after the will was mutilated cannot be properly received in evidence.

[2] The authorities are practically all agreed that, where a testator has wholly or partially destroyed or mutilated, torn, or canceled his will, the declarations made by him at the time of the doing of such act are admissible as a part of the res gestae to show with what intent he mutilated or destroyed the instrument. Managle v. Parker, 75 N. H. 139, 71 Atl. 637,24 L. R. A. (N. S.) 180, Ann. Cas. 1912A, 269, and authorities cited in the note.

[3] There is an irreconcilable conflict in the authorities as to whether declarations of the testator made after the revocation of the will are admissible to show intent. 14 Ency. of Evidence, 448, 453, and cases cited; 30 Am. & Eng. Ency. of Law (2d Ed.) 637. In Jarman on Wills (6th Ed.) p. 147, the author says: ‘Declarations made by the testator are admissible as evidence of his intention, those made at the time of destruction being, of course, of greater weight than those made subsequently.’ In Page on Wills, § 450, the author says: ‘The declarations of the testator, by the weight of authority, are admissible to show his intention to revoke or not to revoke, where such intention is material,whether such declarations strengthen or rebut any presumption raised from the established facts, even where such declarations are made subsequent to the time of the alleged revocation.’ In Schouler on Wills (2d Ed.) p. 423, it is stated: ‘Parol evidence of an intention to revoke or change one's will has been admitted in cases where the papers themselves left the point in doubt, and if it be uncertain from the face of the instrument whether substitution was intended or something additional by way of gift, the testator's purpose may be cleared by evidence aliunde.’

The mere physical act of cutting out a portion of the will here in question is equivocal in its nature. It might or might not have been intended by the testatrix as a destruction of the will as well as the codicil. Beyond question, extrinsic evidence might make plain the intention with which the act was performed.

Whether the subsequent declarations of the testator are admissible to make plain the intent as to the partial cancellation or tearing of a will or codicil has never been raised and decided in this court, but the question of such declarations as to lost or destroyed wills has been passed upon, and such declarations have been held admissible. In Boyle v. Boyle, 158 Ill. 228, 42 N. E. 140, the will of the testator was destroyed. The fact of its destruction was established by declarations of the testator made subsequent to the destruction of the will. Such declarations were held admissible. It is clear, also, from the reasoning in that and other decisions that this court has always assumed that the declarations of the testator were admissible to show intent. See Wolf v. Bollinger, 62 Ill. 368; In the Matter of Page, 118 Ill. 576, 8 N. E. 852,59 Am. Rep. 395;Stetson v. Stetson, 200 Ill. 601, 66 N. E. 262,61 L. R. A. 258; St. Mary's Home v. Dodge, supra. The encyclopedias and other books of reference, in discussing this question, class this state among those permitting the admission of subsequent declarations to prove intent. If declarations of this nature are admissible to show the total destruction or cancellation of the will, there can be no escape from the conclusions that they are admissible to show partial mutilation, cancellation, or tearing of the will.

[4] The word ‘tearing’ has been held to include cutting, and it need not be the cutting of the whole will. 1 Redfield on Wills (4th Ed.) ...