Morey v. Sohier

• Decision Date: 13 March 1886
• Citation: 63 N.H. 507,3 A. 636
• Parties: MOREY and another v. SOHIER and another.
• Court: New Hampshire Supreme Court

3 A. 636

63 N.H. 507

MOREY and another

v. SOHIER and another.¹

SUPREME COURT OF NEW HAMPSHIRE.

Filed March 13, 1886.

Issues upon an appeal from the judge of probate, allowing the will of Dr. S. A. Bemis, executed December 25, 1880.

The first issue is that the appellants are interested as legatees under a former will dated April 26, 1858, and codicils, which have been filed in the probate court, but not proved. In the will of April 26, 1858, the testator gave all his property, subject to a charge of $200 a year for the life of his brother Henry, to the appellant Sohier, his heirs and assigns, "in the full trust and. confidence that he will so manage, dispose of, and use the same, or any and every part thereof, as I may hereafter order and direct him to do by any letter, codicil, or direction in writing which I may make hereafter." By a codicil dated September 20, 1877, he gave to the other appellant, C. V. Bemis, $1,000, and by another codicil dated August 19, 1879, he gave to said C. V. Bemis an additional legacy of $9,000, and made Sohier his residuary legatee. August 5, 1880, he conveyed by deed all his real estate, and the larger part of his personal property, of the value of about$60,000, to Sohier, subject to reservations as follows: "Reserving to myself the right to so much of the granted premises, and the income accruing therefrom, and the proceeds of the same, if sold, as I shall from time to time require for my use or enjoyment, and also reserving to myself the power to revoke these presents by notice in writing, under seal, to said Sohier, his heirs or representatives, of my intention so to do, signed in the presence of two disinterested witnesses, and acknowledged before any justice of the peace;" and upon condition that at his decease Sohier should pay his debts and certain sums to various persons, including $1,000 to C. V. Bemis. Sohier went into possession of said estate, and paid the income to Dr. Bemis until the revocation of the deed. The deed was executed for the purpose of preventing litigation in regard to the grantor's property after his decease. December 23, 1880, Dr. Bemis revoked the deed, according to the power of revocation therein contained. Upon cross-examination of the appellee Osgood, it appeared that Dr. Bemis executed a will, December 21, 1880, by which he gave Sohier $20,000, and C. V. Bemis $1,000, and that he destroyed this will, December 25, 1880, at or immediately before the time when he executed the will now in question. The appellants moved that the first issue be rejected. The court denied the motion. Reserved.

Ray, Brew & Carpenter, Bingham & Aldrich. and Mr. Remick, for appellees.

Copeland & Edgerly and Mr. Gafney, for Sohier.

Nash & Weed, for Bemis.

CLARK, J. The question in this case is whether the will of April 26, 1858, was revoked by the writing of August 5, 1880,—whether the writing purporting to convey all the real and personal estate to the residuary legatee, afterwards revoked under a power of revocation reserved in it, was an implied revocation of the will. By the seventh section of "An act for the devising of real estate, the attestation, filing, and recording of wills in certain cases, and the distribution of testate estates," passed July 2, 1822, it was enacted—

"That no revocation of any will purporting a disposition of real estate, or of real and personal estate, or any clause thereof, shall be allowed, unless proved by some other will or codicil, executed with the like formalities, or by some other writing declaring the same, or by canceling, tearing, obliterating, or otherwise destroying such will by the testator, or by some other person in his presence, and with his consent; and no will in writing concerning personal estate shall be revoked or altered by any words or will by word of mouth only, except the same be in the life-time of the testator committed to writing, and be read to him, and be proved so to be done by three witnesses at least: provided, that nothing in this section contained shall be construed to control or affect any revocation of a will, to be implied according to law from any change in the circumstances of the testator, his family, devisees, legatees, or estate, occurring between the time of making the will and the death of the testator."

This portion of the act of July 2, 1822, is re-enacted in Gen. Laws, c. 193, §§ 14, 15. In the original act section 15 appears as a proviso to what is now section 14,—a modification of form only. The proviso was intended merely to except from the preceding prohibition such revocations as had been established by English decisions on an implication not consistent with the English statute of frauds. "Implied according to law," in the proviso, means implied according to those decisions. What, if any, change in the circumstances of the testator, his family, devisees, legatees, or estate, occurring between the time of making the will and the death of the testator, shall operate as a total or partial revocation of the will, is left to be determined as if the proviso had expressly enacted the rule of those decisions, so far as the reason on which the rule was founded is not excluded by New Hampshire legislation; and if the reason on which the rule was founded no longer exists, the proviso does not require its observance or prohibit its abrogation. The cases of implied or presumptive revocation were few. Marriage and the birth of a child revoked the will of a testator made before the marriage, for the reason that the will, disposing of all the testator's estate, and containing no provision for the wife and child, would entirely exclude them from any share in the estate, except the widow's right of dower. It was conclusively presumed that the testator did not intend to leave his wife and child wholly unprovided for, and it was assumed that there was a tacit condition annexed to the will when it was made that it should not take effect in such a case. Marriage alone revoked the will of a woman, because a married woman, at common law, had neither the capacity to make nor revoke a will; and so, having no power to dispose of the property bequeathed or devised by the will, or to alter or revoke it, it became divested of its ambulatory character, and was regarded as absolutely revoked by the marriage. These were instances of revocation implied from subsequent changes in the condition and circumstances of the testator and his family.

It was formerly essential to the validity of a devise of freehold lands that the testator should be seized thereof at the making of the will, and that he should continue so seized without interruption until his decease. If, therefore, the testator, subsequently to his will, by deed aliened the land which he had disposed of by his will, and afterwards acquired a new freehold estate in the same lands, such newly-acquired estate did not pass by the devise, which was necessarily void. 1 Jarm. Wills, 147. The will was regarded in law in the nature of a conveyance of the land devised. It could operate only upon land in which the testator had an interest at the time of the execution of his will, and consequently after-acquired real estate could not pass by it. George v. Green, 13 N. H. 521. When the conveyance subsequent to the...