Savoy v. Savoy

• Decision Date: 04 November 1954
• Docket Number: No. 11365.,11365.
• Citation: 94 US App. DC 411,220 F.2d 364
• Parties: Mildred B. SAVOY, Appellant, v. Rodney P. SAVOY, Leonard D. Savoy, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

94 US App. DC 411, 220 F.2d 364 (1954)

Mildred B. SAVOY, Appellant, v. Rodney P. SAVOY, Leonard D. Savoy, Appellees.

No. 11365.

United States Court of Appeals District of Columbia Circuit.

Argued May 14, 1954.

Decided November 4, 1954.

Mr. Albert J. Ahern, Jr., Washington, D. C., with whom Mr. James J. Laughlin, Washington, D. C., was on the brief, for appellant.

Mr. George E. C. Hayes, Washington, D. C., for appellees. Mr. Leonard S. Hayes, Washington, D. C., also entered an appearance for appellees.

Before EDGERTON, FAHY and WASHINGTON, Circuit Judges.

FAHY, Circuit Judge.

The appeal, in a contest over the alleged revocation of a will, presents the vexing problem of admissibility of testimony regarding a post-testamentary statement of the testator offered to show his intention in having a part in tearing his will. The instrument had been executed by Walter S. Savoy, referred to sometimes as the testator. After his death it was offered for probate by his widow, the appellant, the principal beneficiary named in the will. It had been torn into two pieces, joined by tape. Testator's two brothers, the appellees, filed a caveat alleging revocation. If this had occurred Walter S. Savoy died intestate and a greater interest in his property devolved to the appellees than if the will stood.¹

On trial of the issues in the District Court before a jury it was brought out that serious marital difficulties had arisen between testator and his wife, which were unresolved at the time of his death. A suit by her for separate support and maintenance and one by him for divorce were pending.

The widow gave the following version of how the will became torn:

"A. Well, after I refused to release him from paying me this alimony, I mean this maintenance, he said, `Well, I\'ll just make another will,\' and he pulled this one out of his pocket and had it going in his hand, shaking, and I grabbed it.

"Q. What is your best recollection, Mrs. Savoy, as to whether you tore it or whether Dr. Savoy tore it?

"A. We both had a part in tearing it."

While there was evidence which might have led the jury to reject this version the resolution of the question was for them and they could have found the tearing occurred as the widow testified. If they did so it was essential that they find also whether or not the tearing was animo revocandi. Our Code, § 19-103, D.C.Code (1951), provides that a will may not be revoked except by another will, codicil or other writing, none of which is here involved, or

"by burning, canceling, tearing, or obliterating the same by the testator himself or in his presence and by his direction and consent * * *."

If the tearing was accidental or unaccompanied by the necessary intent it did not constitute a revocation. Throckmorton v. Holt, 180 U.S. 552, 586-587, 21 S.Ct. 474, 45 L.Ed. 663. The court properly instructed the jury to this effect, but they found testator had revoked the will; that is, that the tearing was accompanied by an intent on his part to revoke.²

On this issue of intent testimony was offered on behalf of the widow that two or three months prior to his death, and some months after the tearing episode as related by her, the testator had asked the proffered witness to intervene with his wife to take him back. He said he had left his wife all his property and wanted his brothers to have nothing, that his brothers, particularly one, were instrumental in putting his mother away in an insane asylum and he was only going to leave them a small amount which would prevent them from contesting the will. This testimony was excluded.

We think this was error. The testimony was relevant to aid the jury in determining whether or not the tearing was intended as a revocation. According to the widow's version the will became torn in ambiguous or equivocal circumstances which left in doubt the state of mind accompanying the act. The proffered statement was revealing as to this. It was evidence that the condition of the will was not due to action intended by the husband to bring about a change in his beneficiaries. It was indicative of the absence of animo revocandi. Other evidence of contrary import was available in abundance but that excluded was relevant for the jury to consider along with the other.

It is contended the proffered testimony was incompetent because hearsay and therefore properly excluded even though relevant. We think it was not hearsay. The issue was the intent or state of mind of the testator when the will was torn. As we have said, the statement attributed to him, in and of itself, tended to show this. The witness whose testimony was offered to prove the testator's statement was under oath and subject to cross-examination. If his statement to her was itself evidence of his intent then her narration of the statement on the witness stand would not have been hearsay but direct testimony of a relevant circumstance bearing upon intent.³ In contrast, if the proffered testimony had been that he told the witness he had not torn the will this would have been hearsay as to whether he did or did not tear it. Throckmorton v. Holt, supra; Mahan v. Perkins, 274 Mass. 176, 179, 174 N.E. 275, 276; 6 Wigmore, Evidence § 1736 (3d ed.); see, also, Peters v. Peters, 64 App.D.C. 331, 78 F.2d 215. But that is not the situation. The testimony was of a statement he made to the witness the content of which was itself relevant in ascertaining testator's intent.

Though not hearsay was the tendered evidence nevertheless of a character so untrustworthy or unreliable as to be incompetent on that ground?

It is desirable to restate briefly the situation so that our decision will not be thought broader than it is. The case does not involve statements offered to prove the forgery of a will, the principal issue in Throckmorton v. Holt, supra, and see Peters v. Peters, supra, or the fact of its execution, as in Mahan v. Perkins, supra, or the content of the instrument, see 6 Wigmore, Evidence § 1736. Nor is it offered to show the act of revocation itself, that is, the tearing. It is tendered to show only the state of mind of the admitted author of the will when it was torn in circumstances which, according to one version, left quite unclear the full nature of the act of tearing. Was it accidental? Did it occur in a scuffle between husband and wife, accompanied with no intent to revoke? Or was it an intentional revocation?

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