Law v. Law

• Decision Date: 21 February 1888
• Citation: 3 So. 752,83 Ala. 432
• Parties: LAW v. LAW.
• Court: Alabama Supreme Court

3 So. 752

83 Ala. 432

LAW v. LAW.

Supreme Court of Alabama

February 21, 1888

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

This action arose on a contest over the probate of a will. T. W Law, as executor, offered the will of John A. Law, Sr., for probate, and petitioned the court to probate the same. W. H Law, the appellee, one of the children and heirs of the said J. A. Law, Sr., contested the will, and issue was joined in the probate court on this contest. The said John A. Law, Sr. had several children, and they were all included in the will and were also made parties to the contest. The evidence, as shown by the bill of exceptions, tended to show that, after the will had been made by the said John A. Law, Sr., he took a pen and ran an ink mark through the name of W. H. Law, the contestant. The contestant then offered to prove by several witnesses, that at the time and before and after the said John A. Law, Sr., struck out the name of the said W. H. Law, by running an ink mark through his name as contained in the will, that he (testator, J. A. Law, Sr.) stated to the several witnesses that he intended thereby to revoke the said will; that it was not his will; and "that he intended to strike the name of W. H. Law out of the will for the purpose of revoking said instrument as his will." This was attempted to be proved repeatedly by several witnesses, but the proponents objected to this evidence being introduced, and the court sustained the said objections, and refused to allow the contestant to prove these facts, for the purpose of showing that it was the intention of the said J. A. Law, Sr., to revoke his said will. To these rulings of the court the contestant excepted, severally. This being all the evidence, the court, among other things, charged the jury, that if they believed from the evidence that the testator obliterated or erased the name of W. H. Law from said will with the intention only to revoke it as to him, and not as to the other legatees named in said will, then it was not a revocation of said will as to the other legatees therein. The contestant excepted to this charge by the court. The proponents then asked the following charge in writing, which the court gave, and the contestant excepted: "If, in erasing the name of W. H. Law from the will, the testator did not intend the alteration of the will in any other respect, then the will was not revoked by that act." The jury found the issues in favor of the proponents, and the contestant then took an appeal to the circuit court, where the court reversed the decree of the probate court, and remanded the cause; whereupon this appeal was taken by the proponents to this court. The judgment of the circuit court is here assigned as error.

Gardner & Wiley, for appellants.

No counsel for appellee.

SOMERVILLE J.

The testator, in February, 1884, executed his will in writing, in due form of law, which was properly attested by two subscribing witnesses. He subsequently erased the name of one of the legatees, the appellee, W. H. Law, by drawing a pen through it so as to expunge it from the instrument. Evidence was offered tending to show that, both at the time of making this erasure and afterwards, he declared his intention to revoke the entire will. This evidence was excluded by the probate court. The charges raise the question as to what effect this erasure or obliteration shall be permitted to have on the will; whether it can operate either as a total or a partial revocation of the instrument under the statute. The statute on this subject provides that, "except in the cases provided for in the preceding article, (i. e. marriage and birth of issue,) a will in writing can only be revoked by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction, or by some other will in writing, or some other writing subscribed by the testator, and attested as prescribed in the first section of this article; and when this will is burned, torn canceled, or obliterated by any other person that the testator, his direction and consent thereto, and the fact of such burning, canceling, tearing, or obliteration, must be proved by at least two witnesses." Code 1886, § 1968; Code 1876, § 2296. The statute, it will be observed, provides that "a will" may be revoked in the different modes declared. It does not say "or any clause thereof," as is said by the sixth section of the statute of frauds, (29 Car. II., c. 3,) and by many statutes of the various American states bearing on this subject. There can be no doubt of the fact that an entire will may be revoked in any of the modes mentioned in the statute-by burning, tearing, canceling, or obliteration, or by a subsequent will duly executed. There is as little doubt that it may be totally or partially altered or revoked by a new will or codicil properly authenticated. The difficulty in such cases arises from the equivocal nature of many acts of the former class indicative of an intention to revoke. It is very certain that no revocation can be affected by mere word of mouth, or nuncupative declaration, any more than could be done under the English statute of frauds. It requires one or more of the specific acts mentioned in the statute,-a burning, tearing, canceling, or obliterating, with the intention to revoke, or a new will or codicil properly executed and attested. To what extent an obliteration of the instrument must extend to be effectually revocatory cannot be stated with any great degree of particularity. The paper must certainly be materially mutilated, so that, if unexplained by accompanying declarations, an intent to revoke may be inferred from its appearance, taken in connection with the act itself. As said in Evans' Appeal, 58 Pa. St. 238, the act done to the will must be one which "stamps upon it an intention that it [the paper] shall have no effect; an act done to the paper itself,-a mark upon it,-evincible of a present intent that it shall not operate as a will." So it was said by Lord Chief Justice DE GREY in reference to the English statute: "The statute has specified four modes of revocation, and if these, or any of them, are performed in the slightest manner, this, joined with the declared intent, will be a good revocation." Bibb v. Thomas, 2 W. Bl. 1043. But, as the whole question turns at last on the ascertainment of the testator's intention, the testator's declarations, both contemporaneous with and subsequent to the act, must be admissible in evidence to explain it, for an act may often amount to a revocation when declared by the testator to be so intended, which,...