Steele v. Price

• Decision Date: 17 September 1844
• Citation: 44 Ky. 58
• Parties: Steele, & c. v. Price and Wife.
• Court: Kentucky Court of Appeals

44 Ky. 58

Steele, & c. v. Price and Wife.

Court of Appeals of Kentucky.

September 17, 1844

Will Case.

APPEAL FROM THE FAYETTE CIRCUIT COURT.

Crittenden and Robertson for appellants.

Clay, Robinson & Johnson, and Woolly for appellees.

OPINION

MARSHALL JUDGE:

[This opinion was delivered at the Spring Term, 1844, a few days before the adjournment of the Court, and suspended until the Fall Term, when the suspension was removed.]

Case stated.

ON the 12th day of October, 1842, William Stee??e, of Fayette county, died childless and unmarried; and at the succeeding November term of the Fayette County Court, D. L. Price and Elizabeth his wife, the latter claiming to be a principal devisee, offered a paper for probate, as containing the substance of the will of William Steele, alleging that the written will, executed by him, was lost. The draft thus propounded, contained a devise of 200 acres of the testator's tract of land, where he lived, to his niece Elizabeth Price, for her sole use, to be laid off in convenient form, including his dwelling house; also of his two slaves, without naming them, and a devise of the balance of his tract of land, supposed to be 60 acres, to Brice Steele. At the succeeding December term, the will being contested, was admitted to record, as propounded, the names " Patsey and Mary," having been inserted as the two slaves devised. On appeal from this sentence, by the contesting heirs, the case was heard in the Fayette Circuit Court, in June, 1843, upon the testimony of witnesses examined in that Court; and the will was established, and admitted to record, as it had been in the County Court, except that the words " for her sole use," in the devise of the land to Mrs. Price, were rejected, and instead of the words " my two slaves, Patsey and Mary," the words " my slaves Lucy, Mary and Bobb," were inserted.

From this sentence of the Circuit Court, an appeal has been taken to this Court by the heirs. And under the act of 1842, (3 Stat. Law, 585,) the case has been heard here, and it is to be decided, not as formerly, upon the testimony of witnesses examined before us, but upon the law and evidence apparent in the record. As the appeal does not bring up the will itself for probate or rejection, but brings up, in substance, the question whether the Circuit Court has proceeded correctly or incorrectly in the trial and decision of that question, we have regarded the party alleging error, as holding the affirmative in this, as in other cases of appeal, without regard to his attitude upon the issue of fact in the Court below; and therefore awarded to the appellants, as in other cases, the opening and conclusion of the argument.

In the will cases tried in the Circui?? Court, the trial is had here upon the record, without examining witnesses orally, and the party alleging erro?? holds the affirmative, and has the opening and conclusion of the ar??gument here.

The 11th section of the statute of wills, (Stat. Law, 1543,) in providing for their admission to record, says, " when any will shall be exhibited to be proved," & c., whence it might be inferred that nothing but the very writing executed or published by the party as his will, could be offered for probate; yet it has been repeatedly decided, that a will may be proved which has been lost or destroyed after the testator's death; as in the cases of Happy's will (4 Bibb, 553; ) Payne's will, (4 Monroe, 422; ) Ba??er vs Dobyns, (4 Dana, 221.) And it is obvious that so far as relates to the 11th section, it is immaterial whether the loss or destruction of the will occurred before or after the death of the testator, if in regard to the disposition of the land and slaves, that can be called a will, which does not exist in writing at the testator's death, when alone a will can first become effectual as an act controlling his estate. And, as upon comparison of the first and third sections of the statute, ( Stat. Law, 1537-39,) which prescribes the modes of making and revoking devises of land, (and by other statutes a devise of slaves is put on the same footing,) it is manifest that the mere destruction or non-existence of a will which once existed in legal form, is not necessarily, and without regard to the manner or purpose of its destruction, a revocation, and as it is moreover manifest, that a devise once valid, and never revoked, may become effectual as a will, by the death of the testator; it follows, that such devise legally made, and never revoked, may, and should, upon sufficient proof, be admitted to probate and recorded, though it be not in existence in written form at the death of the testator.

The contents of a writing which was once valid and never revoked be comes effectual as a will, by the death of the testator, though it be not in existence at his death.

This conclusion, derived from a fair interpretation of the statute, is fully sustained by the cases of Davis vs Davis, (2 Eng. Ecc. Rep., 275; ) Legare vs Ashe, (1 Bay's Rep., 464,) and many other foreign cases; and in our own Court, by the cases of N. Beauchamp's will, (4 Monroe, 361; ) Allison vs Allison, (7 Dana, 90; ) the two cases on Beall's will, of Beall vs Cunningham, (1 B. Monroe, 399; and 3 same, 392; ) and Campbell, & c. vs West, (3 B. Monroe, 242.) Of the six wills involved in these cases, and of which none were found at the testator's death, and some were proved to have been previously destroyed, and the non-existence of the others, would be presumed, from their not having been found; four were established on the ground, that although not in existence, they had not been revoked, and therefore remained valid, and became effectual at the testator's death. The fifth, N. Beauchamp's will, was rejected, not merely because it had been destroyed before the testator's death, although the fact was known to him, but because it had been revoked. " The inward intention to revoke, and outward symbol of revocation," being, in the language of the Court, " so knit together and bound by the evidence, that they could not be separated." And in the case of Campbell vs West, the Court refused to establish the will, not because it had been destroyed, nor because its destruction, though the testator became apprised of it, and failed to supply another, either constituted or proved a revocation, but because the application was made to a Court of Chancery, without showing any ground for its interposition.

In the case before us, not only was the original will not produced for probate, nor proved at the testator's death, but it was proved by a witness on the part of the appellees, that the testator about three weeks before his death, had told him that the will was lost, and also, in effect, that he intended to have another written just like it; and yet it does not appear that he ever made any attempt to renew the will, and it is certain that he never did renew it.

But the third section of the statute requires the revocatory acts, to which alone it gives effect, to be done by the testator himself, or to be caused by him to be done in his presence. And therefore, neither the casual loss or destruction of the will, without the agency or knowledge of the testator, nor his subsequent knowledge of the fact, nor his failure to renew the will, nor all together, constitute a statutory revocation. In the case of N. Beauchamp's will, it not only appeared that the testator was informed of the destruction of his will, but that he said he had ordered it himself; that the law would make a will for him, and he did not renew it. There was no express proof of a statutory revocation, because it was not expressly proved that the will was destroyed in the presence of the testator. But from the facts above stated, the Court say the intention to revoke must be inferred, and the same facts constituted the evidence which so inseparably knit together, and bound the external symbol of revocation, and the inward intention to revoke, as that the Court, on that ground, felt authorized to say that there was a revocation, though it was not proved that the will was destroyed in the very presence of the testator. By what smaller amount of evidence the Court might have been brought to the same conclusion, it is perhaps impossible to say. But it is clear, that notwithstanding the destruction of the will, the Court required farther evidence of the intention to revoke it, and that they did not regard the testator's subsequent knowledge of its destruction, and his failure to renew it, as alone furnishing conclusive evidence of that intention. It may, we think, be inferred, that they would not have been satisfied with these facts alone. It is certain, from the course of the opinion, that unless they had been satisfied that the will was intentionally revoked, its contents would have been admitted to record.

A revocation must be by the act of the testator himself, or by his direction or sanction.

In the case of Campbell vs West, " the fact that the testator knew, or had reason to believe, that his will was destroyed, and nevertheless did not publish any other," is more directly considered; and it is there said, that " although this fact may not prove a revocation, it may tend to show that he consented to die without a will, and finally approved the destruction of that which he had once published; and the Court expressly say, they are not satisfied to decide that the decedent died intestate. It is therefore clear, that in this case, the fact referred to was not regarded as having per se, any technical effect either as a revocation or as evidence of revocation; but that it was considered merely as a circumstance which might tend to show an intention to revoke; which carries the necessary implication that this tendency may be...