Pickens v. Davis

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: C. Allen, J.
• Citation: Pickens v. Davis, 134 Mass. 252 (Mass. 1883)
• Decision Date: 03 February 1883
• Parties: James M. Pickens, administrator, v. William F. Davis

134 Mass. 252

James M. Pickens, administrator, v. William F. Davis

Supreme Court of Massachusetts

February 3, 1883

Argued October 17, 1882

Plymouth. Appeal from a decree of the Probate Court, allowing the will of Mary Davis. Hearing at May term 1881, before Morton, J who reported the case for the consideration of the full court. The facts appear in the opinion.

The case was argued at the bar in October 1882, and was afterwards submitted on briefs to all the judges.

Will disallowed, and the decree of the Probate Court Reversed.

H Kingman, for the appellee.

E Robinson, for the appellant.

OPINION

C. Allen, J.

The two questions in this case are, first, whether the cancellation of a will, which was duly executed, and which contained a clause expressly revoking former wills, has the effect, as matter of law, to revive a former will which has not been destroyed, or whether in each instance it is to be regarded as a question of intention, to be collected from all the circumstances of the case; and secondly, if it is to be regarded as a question of intention, whether subsequent oral declarations of the testator are admissible in evidence for the purpose of showing what his intention was. These are open questions in this Commonwealth. In Reid v. Borland, 14 Mass. 208, the second will was invalid, for want of due attestation. In Laughton v. Atkins, 1 Pick. 535, the second will was adjudged to be null and void, as having been procured through undue influence and fraud; and the whole decision went upon the ground that it was never valid, and could not be.

The first of these questions has been much discussed, both in England and America; and it has been often said that the courts of common law and the ecclesiastical courts in England are at variance upon it. See 1 Wms. on Executors (5th Am. ed.) 154-156, where the authorities are cited. The doctrine of the ecclesiastical courts was thus stated in 1824, in Usticke v. Bawden, 2 Add. Ecc. 116, 125: "The legal presumption is neither adverse to, nor in favor of, the revival of a former uncancelled, upon the cancellation of a latter, revocatory, will. Having furnished this principle, the law withdraws altogether; and leaves the question, as one of intention purely, and open to a decision, either way, solely according to facts and circumstances." See also Moore v. Moore, 1 Phillim. 406; Wilson v. Wilson, 3 Phillim. 543, 554; Hooton v. Head, 3 Phillim. 26; Kirkcudbright v. Kirkcudbright, 1 Hagg. Ecc. 325; Welch v. Phillips, 1 Moore P. C. 299. In Powell on Dev. (ed. of 1827) 527, 528, a distinction is taken between the effect of the cancellation of a second will which contains no express clause revoking former wills, and of a will which contains such a clause; and in respect to the latter it is said that, "if a prior will be made, and then a subsequent one expressly revoking the former, in such case, although the first will be left entire, and the second will afterwards cancelled, yet the better opinion seems to be, that the former is not thereby set up again." Jarman's note questions the soundness of the above doctrine (p. 529, n.). While this apparent discrepancy in the respective courts remained not fully reconciled, in 1837, the English Statute of Wills was passed, St. 7 Will. IV. & 1 Vict. c. 26, § 22 of which provided, that "no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the reexecution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same." Since the enactment of this statute, the decisions in all the courts have been uniform, that after the execution of a subsequent will which contained an express revocation, or which by reason of inconsistent provisions amounted to an implied revocation, of a former will, such former will would not be revived by the cancellation or destruction of the later one. Major v. Williams, 3 Curt. Ecc. 432. James v. Cohen, 3 Curt. Ecc. 770, 782. Brown v. Brown, 8 El. & Bl. 876. Dickinson v. Swatman, 30 L. J. (N.S.) P. & M. 84. Wood v. Wood, L. R. 1 P. & D. 309. In order to have the effect of revocation, it must of course be made to appear that the later will contained a revocatory clause, or provisions which were inconsistent with the former will; and the mere fact of the execution of a subsequent will, without evidence of its contents, has been considered insufficient to amount to a revocation. Cutto v. Gilbert, 9 Moore P. C. 131. See also Nelson v. McGiffert, 3 Barb. Ch. 158.

In the United States, there is a like discrepancy in the decisions in different States, though the clear preponderance appears to be in favor of a doctrine substantially like that established in the ecclesiastical courts. This rule was established in Connecticut, in 1821, in James v. Marvin, 3 Conn. 576, where it was held that the revocatory clause in the second will, proprio vigore, operated instantaneously to effect a revocation, and that the destruction of the second will did not set up the former one; and the like rule was declared to exist in New York, by the Supreme Court of that State, in 1857, in Simmons v. Simmons, 26 Barb. 68. The question was greatly considered in Maryland, in 1863, in Colvin v. Warford, 20 Md. 357, 391, and the court declared that "a clause in a subsequent will, which in terms revokes a previous will, is not only an expression of the purpose to revoke the previous will, but an actual consummation of it, and the revocation is complete and conclusive, without regard to the testamentary provisions of the will containing it." The court further held that the cancellation of a revoking will, prima facie, is evidence of an intention to revive the previous will, but the presumption may be rebutted by evidence of the attending circumstances and probable motives of the testator. In Harwell v. Lively, 30 Ga. 315, in 1860, a similar rule was laid down, and maintained with great force of reasoning. The opinion of the court concludes with the following pertinent suggestion: "It must be conceded there is much law adverse to the doctrine..... Calculated as it is to subserve and enforce the tenor and spirit of our own legislation, and to give to our people the full benefit of the two hundred years' experience of the mother country, as embodied in the late act, is it not the dictate of wisdom to begin in this State where they have ended in England? We think so." See also Barksdale v. Hopkins, 23 Ga. 332. The courts of Mississippi, in 1836, and of Michigan, in 1881, adopted the same rule. Bohanon v. Walcot, 2 Miss. 336, 1 HOW 336. Scott v. Fink, 45 Mich. 241, 7 N.W. 799. It is to be observed, that some of the foregoing decisions are put expressly on the ground that the later will contained an express clause of revocation. 45 Mich. at 246. 20 Md. 392. An examination of the cases decided in Pennsylvania leads us to infer that a similar rule would probably have been adopted in that State, if the question had been directly presented. Lawson v. Morrison, 2 Dall. 286, 290. Boudinot v. Bradford, 2 Yeates 170; S.C. 2 Dall. 266. Flintham v. Bradford, 10 Pa. 82, 85, 92.

On the other hand, in Taylor v. Taylor, 2 Nott & McC. 482, in 1820, it was held in South Carolina that the earlier will revives upon the cancellation of the later one; and the same rule prevails in New Jersey, as is shown by Randall v. Beatty, 4 Stew. (N. J.) 643, and cases there cited.

In various States of the Union, statutes have been enacted substantially to the same effect as the English statute above cited, showing that wherever, so far as our observation has extended, the subject has been dealt with by legislation, it has been thought wiser and better to provide that an earlier will shall not be revived by the cancellation of a later one. There are, or have been, such statutes in New York, Ohio, Indiana, Missouri, Kentucky, California, Arkansas and Virginia, and probably in other States. Concerning these statutes of New York, it is said in 4 Kent Com. 532, that they "have essentially changed the law on the subject of these constructive revocations, and rescued it from the hard operation of those technical rules of which we have complained, and placed it on juster and more rational grounds."

On the whole, the question being an open one in this State, a majority of the...