Graham v. Burch

• Citation: 47 Minn. 171
• Parties: MARY GRAHAM <I>vs.</I> BRIDGET FRANCES BURCH.
• Decision Date: 24 August 1891
• Court: Supreme Court of Minnesota (US)

47 Minn. 171

MARY GRAHAM vs. BRIDGET FRANCES BURCH.

Supreme Court of Minnesota.

August 24, 1891.

Appeal by Mary Graham, contestant, from a judgment of the district court for Ramsey county, Kerr, J., presiding, reversing an order of the probate court, and admitting to probate the will of James Burns, deceased.

John D. O'Brien and Armand Albrecht, for appellant.

Thompson & Taylor, for respondent.

VANDERBURGH, J.

Upon the 8th day of January, 1887, one James Burns, of the city of St. Paul, duly executed and published his last will and testament, whereby he devised his estate, consisting of a lot in the city of St. Paul, with buildings thereon, to his two daughters, who are the parties to this action. Upon his decease Mrs. Burch, the defendant, who is named as executrix in the will, petitioned the probate court for its allowance. Her application was denied, and an appeal taken by the executrix to the district court, where, upon a full hearing, the court reversed the decision of the probate court, and directed the will to be admitted to probate.

The legal questions involved in the case arise chiefly upon the following facts found by the district court: After the execution of the will, the decedent demanded of Mrs. Burch, who had custody of the will, that it be delivered to him to be destroyed. Upon its delivery to him, he placed it, inclosed in an envelope, in a stove, with kindlings not yet ignited, with the intention of destroying the will by burning when the fire should be lighted. The facts were found by the court as follows: (1) "This was done in the presence of said Bridget F. Burch, and with the express and actual intention on the part of said decedent to destroy said will by burning when said fire should be lighted. Said decedent then stepped for a moment out of the room, and thereupon said proponent Burch, fraudulently, and with the purpose of thwarting the said intention of decedent, and without his knowledge or consent, took the will out of the envelope, and secreted it, leaving the envelope in the stove to all appearances as though it still contained the will. Within two hours thereafter the fire in said stove was lighted, either by said decedent or by said Burch, and said envelope burned. Said will was thereafter kept secreted by said proponent Burch, and the decedent ever after supposed the same had been then and there burned as he intended. Said will was not in fact revoked by any of the methods specified by statute." (2) "That on the 6th day of May, 1887, the deceased, James Burns, executed, acknowledged, and delivered to said Bridget Frances Burch a deed of conveyance of the northerly seventy-five (75) feet of lot numbered one, (1,) in block numbered fifty, (50,) of Dayton and Irvine's addition to St. Paul, Ramsey county, Minnesota, being the same property given and devised by the decedent to the said Bridget Frances Burch in the third paragraph of the will of said decedent presented for probate in this proceeding; that said deed was afterwards, in an action brought in this court by said Mary Graham against said Bridget Frances Burch and others for that purpose, set aside upon the ground that the same was procured by reason of undue influence and restraint exercised over said decedent by the said Bridget Frances Burch at the time of the execution thereof, and the judgment of this court in said action was duly entered accordingly."

The statutory provisions in respect to the revocation of wills are as follows. Gen. St. 1878, c. 47, § 9: "No will, or any part thereof, shall be revoked unless by burning, tearing, cancelling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some will, codicil, or other writing, signed, attested, and subscribed in the manner provided for the execution of a will; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." In this case the purpose of the testator to burn his will is clearly shown, but the will remains intact. It was not scorched or mutilated in any degree. The testator did not persist in carrying out his expressed purpose, nor see to it that it was actually burned, wholly or partially. The acts which the statute declares shall constitute an express revocation were none of them done. If in any case, in the absence of any of the acts specified in the statute, the fraud of the devisee could be held to supply the place of such acts, the record before us perhaps presents such a case. But we cannot vary or dispense with the statutory rule, which the legislature has for wise reasons established, on account of the fraud of an interested party. The statute requires that the will itself should be destroyed, or bear some of the marks of defacement or spoliation, manifesting the intent to revoke. The act and intent must concur, and there must be proof of both, though the intent may be inferred from the facts and circumstances. The law will not permit the formalities of the execution of a will to be dispensed with because of fraudulent interference, and the same rule must be applied in respect to the statutory requisites of revocation. 4 Kent, Comm. 520, 521. In Dan v. Brown, 4 Cow. 483, Woodworth, J., says: "There must be a cancelling animo revocandi. Revocation is an act of the mind, which must be demonstrated by some outward and visible sign of revocation. The statute has prescribed four. If any of them are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation." Gains v. Gains, 2 A. K. Marsh. 190; Bibb v. Thomas, 2 W. Bl. 1043; Doe v. Harris, 6 Ad. & El. 209; Jackson v. Betts, 9 Cow. 208; Blanchard v. Blanchard, 32 Vt. 62. But the failure to perform some one of the acts designated by the statute cannot be excused, though such formal act of revocation be defeated or prevented by fraudulent devices. Kent v. Mahaffey, 10 Ohio St. 204; Hise v. Fincher, 10 Ired. 139; Malone v. Hobbs, 1 Rob. (Va.) 346; Clingan v. Mitcheltree, 31 Pa. St. 25; Gains v. Gains, supra.

2. Under the clause saving revocations, "implied by law from subsequent...