JWilliams v. Miles

• Decision Date: 09 April 1903
• Docket Number: 11,630
• Citation: 94 N.W. 705,68 Neb. 463
• Parties: JOSEPH WILLIAMS ET AL., APPELLANTS, v. JOSEPH H. MILES ET AL., APPELLEES. [*]
• Court: Nebraska Supreme Court

94 N.W. 705

68 Neb. 463

JOSEPH WILLIAMS ET AL., APPELLANTS, v. JOSEPH H. MILES ET AL., APPELLEES. ^[*]

No. 11,630

Supreme Court of Nebraska

April 9, 1903

APPEAL from the district court for Richardson county: JOHN R THOMPSON, DISTRICT JUDGE. Affirmed.

Affirmed.

Jefferson H. Broady, Arthur J. Weaver, John L. Webster, John H. Atwood and Reavis & Reavis, for appellants.

Francis Martin, Edwin Falloon and Clarence Gillespie, contra.

POUND C. BARNES and OLDHAM, CC., concur.

OPINION

POUND, C.

The general purpose and nature of this controversy are stated in the opinion of the court on another branch of the cause. Williams v. Miles, 63 Neb. 859, 89 N.W. 451. It will be sufficient to say, for the purposes of the present opinion, that the decree appealed from was rendered in a suit begun originally in the county court of Richardson county for the purpose, among other things, of having an order admitting a certain instrument to probate as the last will of Stephen B. Miles vacated and set aside. Stephen B. Miles died at Falls City, in this state, in 1898, leaving surviving him Joseph H. Miles, one of the appellees, and Samuel A. Miles, one of the appellants, his sons, and a number of descendants of two deceased daughters. In the year 1888, he had made a will at Rulo in Richardson county, in which he gave substantially his entire estate, amounting at the time of his death to upwards of $ 1,000,000, to Joseph H. Miles, excluding Samuel A. Miles, the issue of his two daughters, and many others who had claims upon his bounty. During the period intervening between the execution of this will and his death, he had ceased to take an active hand in business, and lived mostly at hotels in St. Louis, Missouri, or at Falls City. After his death, Joseph H. Miles, who was present when the will known as the Rulo will was executed, in 1888, and was acquainted with its contents, made an extensive search in every place in which papers of the deceased were known to be or were likely to be found, for the purpose of ascertaining whether there was a will. As a result of this search, he testifies that he found the Rulo will in an unlocked valise in a room in a hotel at Falls City, which had been occupied by the deceased, under circumstances which, to say the least, are somewhat extraordinary. He presented the will to the county court of Richardson county and procured its probate. The appellants' case is that in 1897 the testator executed a new will at a hotel in St. Louis, where he was in the habit of spending his winters, which had the effect of revoking the Rulo will; that Joseph H. Miles learned of the existence of this will while searching for papers left by his father; and that he fraudulently concealed and withheld his knowledge thereof, and by so doing procured the will of which he was the beneficiary to be probated. It is also charged that he obtained possession of the will executed at St. Louis and has retained the same, and concealed its contents from the plaintiffs, with the intent and purpose of cheating and defrauding them, the heirs at law, and other devisees and legatees of the testator. The later will, if there was one, has not been found.

The evidence with reference to the execution of what may be called the St. Louis will consists of the testimony of two witnesses, the manager and clerk of the hotel in St. Louis, who appear to have been well acquainted with the testator. They testify that within a few days after a conversation which one of them had with the testator regarding his will, the testator stated that he was going to make his will at once, and apparently went out of the hotel for that purpose; that several hours thereafter he came to the office in the hotel and stated that he had made a will; that either the next day or within two or three days, they were summoned to the testator's room, where they found him with some document drawn upon legalcap paper before him; that the testator said, to them, "Gentlemen, I want you to witness the signature of my will"; and that he thereupon took a pen, and, saying "This is my last will and I want you to witness the signature to it," signed his name, and procured the witnesses to subscribe theirs also. The testimony of these witnesses is very clear and circumstantial as to the execution of the instrument, but they do not claim to know anything of what the paper contained, further than the statement of the testator that it was his will. There is, however, not a little evidence as to declarations of the testator tending to show that he had made dispositions of his property inconsistent with the terms of the Rulo will, and there is much circumstantial evidence to indicate substantial reasons moving him so to do. The trial court found for the defendants, and rendered a decree accordingly, which is now appealed from.

On behalf of the appellees it is urged that, assuming the St. Louis will has been proved, since the testimony by which it is shown establishes that the testator retained custody of or had ready access to it, and it could not be found at his death, we must take it to have been destroyed by the testator with the purpose of revoking it, and that such revocation, in the absence of a contrary statutory provision, and by virtue of chapter 15a, Compiled Statutes (Annotated Statutes, 6950) would have the effect of reviving the prior will. Each of these propositions requires some qualification. Where a will is shown to have been made and left in the custody of the testator, if it can not be found after his death, the presumption is that he destroyed it animo revocandi. 1 Jarman, Wills (5th ed.), *133; Boyle v. Boyle, 158 Ill. 228, 42 N.E. 140; Collyer v. Collyer, 110 N.Y. 481, 18 N.E. 110; Behrens v. Behrens, 47 Ohio St. 323, 25 N.E. 209; Gardner v. Gardner, 177 Pa. 218, 35 A. 558. If the will is traced out of the testator's custody, on the other hand, the burden is on him who asserts a revocation to show that it came once more under the testator's control, or was destroyed by his direction. 1 Jarman, Wills, *133. In such cases if the person into whose hands the will is traced had an interest in procuring its destruction, some courts have suggested that they would go very far in presumptions as to the contents of the lost will and the mode of its disappearance. Chisholm v. Ben, 46 Ky. 408, 7 B. Mon. 408. We need not examine this subject in the case at bar. Although there is some circumstantial evidence which might create a suspicion that the St. Louis will came into the bank at Falls City, where Joseph H. Miles would have had access to it, we do not think there is enough to call for application of the authorities referred to, even if we were prepared to follow them. Clark v. Turner, 50 Neb. 290, 299, 69 N.W. 843; Collyer v. Collyer, 110 N.Y. 481, 486. But if we take it that the St. Louis will, assuming that there was one, remained in the custody of the testator, it does not follow that such will must be regarded as revoked. The presumption of destruction animo revocandi is one of fact only. It governs in the absence of circumstances tending to a different conclusion, but may be overcome by circumstantial or other evidence to the contrary. 1 Jarman, Wills (5th ed.), *133; Legare v. Ashe, 1 Bay 464; Davis v. Sigourney, 8 Met.c 487; Minkler v. Minkler, 14 Vt. 125; Gardner v. Gardner, 177 Pa. 218, 35 A. 558. And declarations of the testator subsequent to the execution of the will, are admissible for this purpose. Lawyer v. Smith, 8 Mich. 411; Harring v. Allen, 25 Mich. 505; McDonald v. McDonald, 142 Ind. 55, 41 N.E. 336; Boyle v. Boyle, 158 Ill. 228, 42 N.E. 140; Behrens v. Behrens, 47 Ohio St. 323, 25 N.E. 209, 21 Am. St. Rep. 820; Gardner v. Gardner, supra. In the analogous case of a will found among the testator's papers in a mutilated condition, declarations of the testator manifesting good will toward the beneficiaries, showing a purpose of adhering to its provisions, or that he is entirely satisfied therewith, will be received to rebut the presumption of revocation. 1 Underhill, Wills, sec. 232. In the case at bar, the declarations of the testator indicating that he had made and was adhering to dispositions not to be found in the Rulo will are numerous and well authenticated. Moreover, there are circumstances in evidence which would indicate that, in case there was a will subsequent to the Rulo will, it represented the final intentions of the testator. But even if we held that the St. Louis will, if there was one, was destroyed animo revocandi, would it follow that a former will, revoked by the St. Louis will, was revived by destruction of the latter? This raises a question of some difficulty, which has given rise to no little discussion.

Our statute of wills follows the Massachusetts act of 1836 which, as to execution and revocation, is modeled on the statute of frauds. We have not adopted a modern statute along the lines of the English statute of 1837. Hence the question must be settled in this state without reference to the later statutes, and decisions thereunder, except as they indicate a sound policy, in accord with the general objects and purposes of every statute on the subject. If the first will is destroyed, and a subsequent will is revoked or canceled, it has never been asserted that the first will is revived. But if the first will remains in existence, and a second will, which operated to revoke it, is afterwards revoked or canceled, without execution of a new one, there has been much divergence of opinion. Lord Mansfield announced a rule, which was followed by the common-law courts, when questions as to wills disposing of real property came before them, to the effect that if the first will is preserved, and a subsequent will, revoking it expressly or by implication, is...