Rich v. Gilkey

• Decision Date: 28 November 1881
• Citation: 73 Me. 595
• Parties: THOMAS A. RICH and another, appellants, v. MARY K. GILKEY.[a1]
• Court: Maine Supreme Court

73 Me. 595

THOMAS A. RICH and another, appellants, v. MARY K. GILKEY.^[a1]

Supreme Judicial Court of Maine.

November 28, 1881

An appeal from the decision of the judge of probate in the matter of the probate of the will of Sylvanus Rich.

The will was dated April 9, 1872. In March, 1879, he made a codicil giving his niece, Mary K. Gilkey, the income of ten thousand dollars during her life. On the sixteenth of March 1880, the testator destroyed this codicil and made another disposing in a different way of the property given by the former codicil in trust for Miss Gilkey. The testator died on the eighteenth of April, 1880. The judge of probate sustained the first codicil and admitted the same to probate.

The cause came on for trial at the October term, 1881, when by mutual agreement the following entry was made:

" Referred to the presiding judge, who may decide all questions upon the merits as affected by considerations of expediency and compromise, including costs, and enter all and any decrees necessary to carry his decision into effect."

The material facts are stated in the opinion.

A W. Paine and John Varney, for the plaintiffs.

Barker, Vose and Barker, for the defendant.

PETERS J.

When this cause was referred to me for decision, in view of the fact that the jury trial might be broken off by the sickness of a juror, I hardly comprehended the extent of the duties which have been cast upon me. I had supposed my office would be performed by the recommendation of some sum which the estate had better pay and the other party had better receive, in a spirit of compromise, than to pursue the case to an end upon the strict application of legal principles and a close sifting of all the facts that might be produced in evidence. Had I anticipated that the respective parties would adhere so closely as they have to supposed legal rights, I should not have so readily taken upon myself a self-imposed responsibility. Having, however, examined and considered all the issues of law and fact sufficiently to form as satisfactory conclusions as it is probable I ever could arrive at, I file in the case the following opinion.

There is no doubt that Captain Rich, the testator, destroyed the codicil in favor of Mary Gilkey in his lifetime.

The questions of fact are these: First, Was the testator, at the date of the destruction of the codicil, possessed of testamentary capacity? Second, If he had testamentary capacity, was he induced to do the act by undue influence? It would not be inconsistent to find that a testator was not possessed of sufficient mental capacity to make a will, and also that he was operated upon by undue influence.

The questions of law are: First, Whether, if the codicil was destroyed by the testator, while lacking the possession of testamentary capacity, it can be legally upheld and probated by means of oral evidence? And, secondly, whether the same result follows, if the destruction was induced by undue influence alone.

An examination of the questions of law comes first in the natural order.

I feel clear in the belief that a person who has not testamentary capacity, cannot revoke a will in any manner whatever. He can neither make nor unmake a will. A codicil stands upon the same footing as a will. A will legally made stands until legally revoked. It cannot be revoked by any act of destruction, unless the act is done with an intention to revoke; and a person not having testamentary capacity cannot have an intention to revoke a will; he is legally incapable of it. In such case the burning of the will can have no effect whatever, provided the contents can be clearly and certainly proved by other evidence. The written instrument may be burnt, the surest and best evidence of the will may be thus destroyed, but the will itself, if a draft of it can be proved, outlives the act of destruction, and the testamentary dispositions stand.

This is a common principle in the law, applicable to the loss or destruction of papers and records generally. For instance, A gives B a deed of land. The deed is lost or accidentally destroyed; but the conveyance stands, if the contents of the deed can be proved by satisfactory evidence.

It is said that this opens a wide field for error and fraud, to establish wills upon oral evidence. To my mind, many more frauds would be committible if the contrary rule were admitted. It is upon proof, complete and undoubted, and not upon less than proof, that wills may be orally established, it is to be noticed.

The counsel for the executors contend that, if a will destroyed after a testator's death can be upheld and established by oral evidence, one destroyed before his death cannot be. I do not concur in this view of the learned counsel. I do not find the distinction admitted by the authorities, excepting, possibly, where the law is so enacted in one or two of the states. Nor do I see the force of any such attempted distinction. I cannot well perceive that the act of wrongfully destroying a will five minutes before death would be valid, and the same act be not valid, if done by the same hand and in the same way five minutes afterwards.

It is said that a wrongful or accidental destruction of a will might take place many years before a testator's death, and in the meantime the testator might become satisfied with the fact of destruction and in his mind ratify the act, and still the instrument be established as his will after his death, if this doctrine be tenable. But the answer to this apprehension of danger consists in the requirement of the law that any person propounding for probate a will destroyed in the testator's lifetime, has upon himself the burden to prove that, notwithstanding destruction, the will continued to be the will of the testator unrevoked up to the testator's death. The presumption would be that the will was destroyed animo revocandi, and the burden would be upon the proponent to show, by circumstances or otherwise, that the will was not revoked by the destruction or by a ratification of the destruction while the testator lived.

I think these views are sustained by the great current of authority. The English cases, earlier and later, are that way. The old work on wills by Swinburne, who compiled his book as long ago as during the reign of Queen Elizabeth, gives this exception to the cases where a will becomes void by cancelling or defacing: " Where the testament was cancelled by the testator himself unadvisedly, or by some other person without the testator's consent, or by some other causalty." Jarman, the best authority on wills, English or American, vol. 1, p. 130, says: " The mere physical act of destruction is itself equivocal, and may be deprived of all revoking efficacy by explanatory evidence, indicating the animus revocandi to be wanting." He further says: " Thus, if a testator inadvertently throws ink upon his will, instead of sand, or obliterates or attempts to destroy it in a fit of insanity, or tears it up under the mistaken impression that it is invalid, it will remain in full force, notwithstanding such accidental or involuntary or mistaken act." Mr. Bigelow, the American editor of Jarman's work, in his notes fully approves the doctrine quoted, citing many American cases in its support. The same doctrine is maintained by Prof. Greenleaf in his work on Evidence, § 681, vol. 2, and notes. Redfield, in his treatise on wills, in many places restates the same rule, and upon page 323 of volume 1, (1st ed.) says: " The soundness of the mind and memory is requisite to the valid revocation of a will, as to its execution. It follows, of course, that the performance of the mere act of tearing, cancelling, obliterating, burning, & c. without the animo revocandi, and which could not exist, unless the testator were in his sane mind, could have no legal operation upon the instrument."

In Bacon's Abridgement (vol. 10, p. 546,) it is laid down, that " the destruction of a will, even by the testator himself, does not amount to a revocation, if the testator had not capacity. Though the instrument is not in being, if the contents are known, it can be proved." Mr. Wharton expresses it this way; " Revocation will not be complete unless the act of spoliation be deliberately effected on the document, animo revocandi. This is expressly rendered necessary by the will act, and is impliedly required by the statute of frauds."

In Smith's Probate Law, a Massachusetts work of merit, at p. 51, the author says; " It may be that the will was destroyed by the testator in a fit of insanity, or that it was lost, or accidentally or fraudulently destroyed. Such accidental or fraudulent destruction will not deprive parties of their rights under its provisions, if they can produce the evidence necessary to establish the will."

In Clark v. Wright, 3 Pick. 67, a codicil fraudulently destroyed in the testator's lifetime was established, upon parol proof of its contents, by the Massachusetts supreme court of probate. The same doctrine was affirmed by the same court in the case of Davis v. Sigourney, 8 Metc. R. 487, and reaffirmed in Wallis v. Wallis 114 Mass. 510. In Newell v. Homer, 120 Mass. 277, the petitioner was held to prove a destruction of the will after the the death of the testator, merely because he, in his petition, had so alleged the fact.

The New York cases are in accord with the foregoing cases. In Smith v. Wait, 4 Barb. 28, it was ruled that if a testator was incompetent to make a will, he was incompetent to revoke a will made before, and that an insane man can have no intent such as is necessary to revoke a will. In Idley v. Bowen, 11 Wend. 227, it was held that a revocation by burning the will by the testator, could be impeached by showing the incompetency of...