Giddings v. Giddings

• Decision Date: 01 December 1894
• Citation: 65 Conn. 149,32 A. 334
• Court: Connecticut Supreme Court
• Parties: GIDDINGS v. GIDDINGS et al.

32 A. 334

65 Conn. 149

GIDDINGS

v. GIDDINGS et al.

Supreme Court of Errors of Connecticut.

Dec. 1, 1894.

Case reserved from superior court, Hartford county; Shumway, Judge.

Suit by Frederick W. Giddings, executor, against Cornelia A. Giddings and others, for the construction of a will. Reserved by the superior court upon the facts stated in the complaint

Lyman S. Burr, for the executor. Frank L. Hungerford, for George W. Giddings.

Donald T. Warner (with whom was Wellington B. Smith), for William H. Giddings.

Philip J. Markley, for Henry H. Northend.

FENN, J. The testator, William W. Giddings, died in 1893, seised and possessed of real estate inventoried at $17,050, and personal estate inventoried at $102,147.33. He left a last will, executed in 1889, and a codicil, executed in 1893, both of which were duly admitted to probate. So much of said will as is here material is as follows: "Fifth. I give to my son William H. Giddings my block on Glen street, bounded," etc. "Sixth. I give to my son Frederick W. Giddings my house and lot on Cedar street bounded," etc. "Seventh. I give to my son George W. Giddings my house and lot Nos. 163 and 165 West Main street bounded," etc. "* * * Ninth. All the residue of my estate, both real and personal, I give to my three sons, William H. Giddings, Frederick W. Giddings, and George W. Giddings, share and share alike. Tenth. I give to my son George W. Giddings, after the death of my said wife, the house and lot No. 173 West Main street." The testator left surviving his widow and the three sons named, and a grandson, the child of a deceased daughter, who were his heirs at law. The codicil, omitting formal parts, is as follows: "Whereas, since the execution of said will, I have sold the house and lot 163 and 165 West Main street, devised in section 7 of said will to George W. Giddings, I hereby revoke that portion of said will. I have also sold house or block and lot on Glen street, devised in section 5th of said will to William H. Giddings. I therefore give to him the proceeds—five thousand dollars—instead. I hereby republish and confirm my said will, except as hereby changed." At the date of the execution of said codicil the house and lot on Glen street had been sold, but the house and lot on West Main street had not been sold, but was then the property of the testator, and was not sold at the date of his death, but was still owned by him, in his possession, and is now a part of his estate. Two questions are presented by the reservation for our advice. First. Is the devise mentioned in section 7 of said will, to the said George W. Giddings, revoked by the clause of said codicil to said will? Second. If said devise is held to be so revoked, is said real estate part of the residuum, or is it intestate property, which should be distributed to the heirs at law of the decedent? In reference to the first question, in behalf of George W. Giddings, who claims that the devise is not revoked, the case of Dunham v. Averill, 45 Conn. 62, Is relied on. In that case it was said, on page 80: "It is true that the law will presume in favor of a devise or legacy that it is not annulled by a clause of revocation in a codicil if a mistake as to a fact moves the testator to write it and continue it in force, and he states in the writing what the fact is, and therein shows that the revocation is made conditional upon its existence." Other authorities cited in the brief support this general statement 1 Jarm. Wills, p. 351; Schouler, Wills, § 410; 1 Williams, Ex'rs (5th Ed.) 149; Mordecai v. Boylan, 6 Jones, Eq. 365; Campbell v. French, 3 Ves. 321; Doe v. Evans, 10 Adol. & El. 228. But it is to be borne in mind that the question of revocation is "altogether a matter of intent," and that, therefore, the rule above stated only holds when it effectuates, and not at all when it defeats, Intention; and so are the authorities. It will be noticed that our own court, in the quotation above gived, expressly limits the rule to cases where the mistake not merely exists, but is the moving cause, and the writing "shows that the revocation is made conditional upon its existence." Schouler, also, in his work on Wills (section 410), after stating the rule, and illustrating it by cases where the testator by a later will repealed legacies given by an earlier to his grandchildren, "they being all dead," when in fact they were living; where benefits were conferred upon one described as husband or wife, who turns out not to be legally a spouse, by reason of some prior and existing marriage; and where a testator treats a gift as made to A. in an existing will, when it was in fact made to B.,—adds: "This rule regards the testator's intent, and the impulse which moved him to dispose as he did The courts treat the revocation, accordingly, as a sort of contingent or conditional one." He further says that, where grounds are stated, "of whose falsity or truth the testator judged for himself, this rule does not apply." He adds, also, citing Gifford v. Dyer, 2 B. I. 99, that not only must the mistake be apparent from the face of the testamentary papers, but also what the will of the testator would have been except for the mistake. In Bedfield on Wills (volume 1, side page 359) the author speaks of the general rule that legacies and revocations founded in mistake shall not operate, as "very questionable in principle," and gives cogent reasons which would be unanswerable if such rule was to be understood as extending further than to effectuate manifest intention. Perhaps the case nearest in similarity to the present which can be found in the Beports is that of Hayes' Ex'rs v. Hayes, 21 N. J. 265. In that case there was a codicil revoking in express terms a legacy in the will, because the testator had provided the legatee with a permanent home, when in fact he had not so provided. It was held that the revocation was operative. The court, citing Campbell v. French, 3 Ves. 321, and Kennell v. Abbott, 4 Ves. 808, claimed to be contra, said: "i...