Fletcher Trust Co. v. Morse

• Court: Indiana Appellate Court
• Writing for the Court: ACHOR
• Citation: Fletcher Trust Co. v. Morse, 97 N.E.2d 154 (Ind. App. 1951)
• Decision Date: 06 March 1951
• Docket Number: No. 18039,18039
• Parties: FLETCHER TRUST CO. et al. v. MORSE.

Page 154

97 N.E.2d 154

FLETCHER TRUST CO. et al. v. MORSE.

No. 18039.

Appellate Court of Indiana, in Banc.

March 6, 1951.

Carl E. Stilwell, Indianapolis, for appellant.

Armstrong & Gause, Philip S. Kappes, Paul B. Hudson, Erle A. Kightlinger, Indianapolis, for appellee.

ACHOR, Judge.

This is an action brought by Lyle R. Morse under the Declaratory Judgment Act of Indiana, Burns' Ann.St. § 3-1101 et seq., asking for the construction and interpretation of the last will and testament of Cheston Lawrence Heath, deceased. The appeal is from a judgment in the Marion Probate Court which declared appellee Lyle R. Morse a beneficiary under said will.

The facts are not in dispute. The will (Appellee's Exhibit 'A') and decedent's signed statement (Appellee's Exhibit 'B') were admitted into evidence without objection. The body of the will was as follows:

'I, Cheston Lawrence Heath being of sound mind and conscious of the redeeming Love of my Lord, Jesus Christ. Do hereby will and bequeath all my worldly goods both real and personal after all my just debts be paid.

To

John Allan Heath Son

Howard Franklin Caulfield. Foster Son (a heavy line obliterated the name of Lyle R. Morse, Foster Son)

To share all and share alike.

Witness my hand this 20th day of January 1943

Cheston L. Heath

Witness

Charles S. Heckingbottom

Harry H. Gunkle'

The accompanying statement was as follows:

'Addition to Last Will and Testament

'Under no condition do I wish the third party Lyle R. Morse as stated in the will to be included in this will.

'Two and two only I leave the estate. John A. Heath my son and Howard Franklin Caulfield my foster son to share all, and each alike.

'Cheston L. Heath

'Date January 10, 1947'

Both signatures were admittedly that of Cheston L. Heath.

After his death the will was probated with the defendant Fletcher Trust Company being appinted executor. It denied any devise or legacy in Lyle R. Morse.

According to the undisputed testimony the will at the time of its execution included the names of John Allan Heath, son, Howard Franklin Caulfield, foster son and Lyle R. Morse, foster son. The name of Lyle R. Morse, foster son, had been obliterated from the will subsequent to its execution by drawing numerous heavily inked lines through it. There is no evidence as to who actually performed the act of deleting the name of Lyle R. Morse nor is there any direct evidence as to the custody of the will from the time of its execution to its being probated. There is evidence that the decedent did his banking at the Fletcher Trust Company, now administrator herein.

Judgment was rendered by the trial court in which it decreed that Lyle R. Morse was a beneficiary under the last will and testament of Cheston Lawrence Heath and that the appellant, Fletcher Trust Company, administrator, should recognize the appellee, Lyle R. Morse, as a beneficiary along with appellants, John Allan Heath and Howard Franklin Caulfield, all of said beneficiaries to share alike in the distribution of said estate.

Subsequent to said judgment defendant filed his motion for a new trial, giving for his cause (1) that the decision of the court was not sustained by sufficient evidence and (2) that the decision of the court was contrary to the law. The motion for a new trial was denied and upon these issues the case was appealed to this court.

There being no conflict in the evidence, consideration by this court is limited to the legal consequences of the uncontradicted facts.

The first proposition is the question as to whether or not a partial revocation of a will is permitted under our statutes. As far as we are able to determine this point has never been adjudicated either by the Supreme or Appellate Courts of Indiana. However, there is ample precedent in other states as to the law on this subject.

The statute controlling revocation of wills, § 7-301, Burns' 1933, is as follows: 'No will in writing, nor any part thereof, except as in this act provided, shall be revoked, unless the testator, or some other person in his presence and by his direction, with intent to revoke, shall destroy or mutilate the same; * * *.' (Our italics.)

'The matter of the revocation of a will is controlled by statute, and the question whether a will may be revoked in part, or whether the revocation must go to the will as a whole, depends upon the terms of the statute. * * *' 62 A.L.R. 1376.

'In many jurisdictions the statute relative to the revocation of wills expressly refers to the revocation of a will or ony part thereof. Under such statutes the right to revoke a will, either in toto or pro tanto, is clear, where the statutory requirement as to cancelation, tearing, etc., is complied with.' 62 A.L.R. 1380.

See also 57 Am.Jur. 351; Cook v. Jeffett, 1925, 169 Ark. 62, 272 S.W. 873; In re Wikman's Estate, 1906, 148 Cal. 642, 84 P. 212; Wolf v. Bollinger, 1872, 62 Ill. 368; Blackett v. Ziegler, 1911, 153 Iowa 344, 133 N.W. 901, 37 L.R.A., N.S., 291; Fry v. Fry, 1904, 125 Iowa 424, 101 N.W. 144; Russell v. Tyler, 1928, 224 Ky. 511, 6 S.W.2d 707; Tudor v. Tudor, 1856, 17 B.Mon. 383, 56 Ky. 383; Eschbach v. Collins, 1884, 61 Md. 478, 48 Am.Rep. 123; Michigan Trust Co. v. Fox, 1916, 192 Mich. 699, 159 N.W. 332; Varnon v. Varnon, 1896, 67 Mo.App. 534; In re Frothingham's Will, 1909, 76 N.J.Eq. 331, 74 A. 471; In re Love's Estate, 1923, 186 N.C. 714, 715, 120 S.E. 479; Barfield v. Carr, 1915, 169 N.C. 574, 86 S.E. 498; Brown v. Brown, 1912, 91 S.C. 101, 74 S.E. 135; Stephens v. Leatherwood, Tex.Civ.App., 1927, 295 S.W. 236; In re Appleton's Estate, 1931, 163 Wash. 632, 2 P.2d 71; Swinton v. Bailey, 1876, 45 L.J.Exch. 427.

In the light of the overwhelming authorities, we must conclude that partial revocation of wills is clearly authorized by our statute. 'Any other construction would require that the words 'or any clause thereof' be regarded as having no effect.' Brown v. Brown, supra [91 S.C. 101, 74 S.E. 136.]

Revocation, as provided by statute, is composed of three essential elements, (1) a sufficient act (2) performed by testator (someone in his behalf) (3) with intention to revoke.

The name and relationship of Lyle R. Morse having been so obliterated upon the will as to make it illegible, there was clearly a sufficient act of destruction or mutilation. Woodfill v. Patton, 1881, 76 Ind. 575; Tinsley v. Carwile, 1937, 212 Ind. 675, 10 N.E. 597; In re Patton's Will, 1950, Ind.App., 95 N.E.2d 311.

Likewise, we believe the revocatory intention was unequivocally established by testator's written declaration.

The question as to whether or not the testator (or someone at his direction) obliterated the name of Lyle R. Morse from the will presents one of the major controversial issues of the case. The evidence upon this point is fragmentary. The question as to whether an inference of obliteration by testator is created by law from the circumstances of the case and whether such inference, if any, can be maintained when supported by other inferences drawn from the evidence of the case, poses an interesting question of law.

Appellee contends that inasmuch as the law surrounds the execution of wills with great solemnity and formality and because of public policy itself against encroachment by fraud upon such instruments, that all exceptions to the general law of wills be strictly construed.

Appellants assert that inasmuch as the whole law of wills was enacted for the purpose of preserving and putting into effect the last clear testamentary intention of the testator, that the law regarding revocation should be liberally construed so as to accomplish this result. And, although the burden of proof is upon the party asserting revocation, it be given the benefit of all inferences which can reasonably be drawn from the evidence and the circumstances of the case.

The courts seem to have adopted liberal construction of the statute. For example, where the act of mutilation is sufficient and the revocatory intention is clear, proof that the act was that of testator is presumed as a matter of law where the will remained in the possession of decedent. 165 A.L.R. 1202. In re Wikman's Estate, supra; In re Flynn's Estate, 1940, 307 Ill.App. 582, 30 N.E.2d 970; Carrithers v. Jean's Ex'r, 1933, 249 Ky. 695, 61 S.W.2d 323; Muh's Succession, 1883, 35 La.Ann. 394, 48 Am.Rep. 242; Measley v. Housman, 1924, 144 Md. 339, 124 A. 906; Michigan Trust Co. v. Fox, 1916, 192 Mich. 699, 159 N.W. 332; Whitehead v. Kirk, 1913, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L.R.A., N.S., 187; In re Gorrell's Estate, 1941, 19 A.2d 334, 19 N.J.Misc. 168; In re Frazell's Estate, 1940, 174 Misc. 142, 19 N.Y.S.2d 989; In re Wellborn's Will, 1914, 165 N.C. 636, 81 S.E. 1023; In re Cabler's Estate, 1927, 124 Okl. 275, 257 P. 757; In re Heller's Estate, 1945, 158 Pa.Super. 194, 44 A.2d 528; Dawley v. Congdon, 1919, 42 R.I. 64, 105 A. 393; Murrell v. Rich, 1914, 131 Tenn. 378, 175 S.W. 420; Canterberry v. Canterberry, 1938, 120 W.Va. 310, 197 S.E. 809; In re Rachfuss' Estate, 1939, 232 Wis. 266, 287 N.W. 173; In re Olmstead's Estate, 1898, 122 Cal. 224, 54 P. 745; Cook v. Jeffett, supra; Throckmorton v. Holt, 1901, 180 U.S. 552, 21 S.Ct. 474, 45 L.Ed. 663.

Even where divided possession is shown, many courts have supported an inference of revocation by testator in the absence of evidence causing suspicion regarding the tearing, etc. Home of the Aged v. Bantz, 1908, 107 Md. 543, 69 A. 376; In Woods' Estate, 1915, 247 Pa. 377, 93 A. 483; In re Clark's Will, 1869, Tuck., N.Y., 445.

In the case of In re Kathan's Will, Sur., 1913, 141 N.Y.S. 705, 716, the court stated: 'It was a rule of the canon law 'that, if there be a controversy who did it (i. e., the tearing), it will be presumed to be done by him in whose custody it was' * * * and where two persons, including testatrix, have access to the paper, the destruction is presumed to be hers 'alone,' as stated in Browne's Ecclesiastical Law * * *. In other words, the...