Stevens v. Stevens

• Decision Date: 31 December 1903
• Citation: 72 N.H. 360,56 A. 916
• Parties: STEVENS v. STEVENS et al.
• Court: New Hampshire Supreme Court

56 A. 916

72 N.H. 360

STEVENS

v. STEVENS et al.

Supreme Court of New Hampshire. Merrimack.

Dec. 31, 1903.

Transferred from Superior Court; Peaslee, Judge.

Proceedings for the probate of the will of Vinal G. Stevens by Mary A. Stevens, administratrix; John A. Stevens and Allen Hollis, administrators of the estate of Phoebe Stevens, deceased, contestants. The will was allowed by the probate court, and contestants appealed to the superior court, where there was a verdict for proponent; exceptions being taken on the trial. Transferred from the superior court. Exceptions overruled.

The scrivener who drew the will in 1882 testified that it was then executed and was sealed with a small red seal, and that he retained the instrument in his possession until 1892, when it was delivered to the testator with the seal upon it. When produced in court the will was sealed with a large green seal. The testimony of the second, witness to the will tended to corroborate the foregoing, and the testimony of the third witness was waived. There was no evidence to explain the change in the seals. The testator died December 14, 1887, and no will was found among his papers. A daughter of the testator was named as executrix and residuary legatee, and after her death, in March, 1901, the will was found among her effects, and was offered for probate by her administrator, who is one of the appellees. The appellants moved that a verdict be directed that the will was revoked by cancellation. The motion was denied, subject to exception. They also offered to show that at various times after 1892 the deceased said that he had revoked his will, or that be bad no will. The evidence was excluded, subject to exception.

George R. Brown and Martin & Howe, for appellants. Streeter & Hollis, for appellees.

PARSONS, C. J. The submission of the issue of revocation to the jury upon the evidence reported does not present any error of law prejudicial to the contestants. Conceding the soundness of their claim—that the removal by the testator, with revocatory intent, of the seal from a will published as sealed, is a revocation of the will, and that, if a will be found among the papers of the deceased with the seal torn off, the presumption is, in the absence of explanation, that the seal was removed by the testator with intent to revoke the will—the case does not fall within the principles relied upon. The will was not found with the seal apparently torn off, nor was it found among the testator's papers. The fact that the will was not shown to have been in the testator's possession, or was not found among his papers after his decease in the condition in which it was for probate, assuming that upon the evidence a mutilation of the will could be found, upon all the authorities, leaves no basis for the presumption of revocation. 1 Red. Wills, 307; 1 Jar. Wills. 291; Bennett v. Sherrod, 25 N. C. 410, 40 Am. Dec. 410; Throckmorton v. Holt, 180 U S. 552, 584, 21 Sup. Ct. 474, 45 L. Ed. 663. The evidence of mutilation was equally insufficient The document itself furnished no evidence. It was apparently perfect.

The sole evidence upon which it is claimed it should be conclusively inferred that the seal was removed from the will by the testator, with intent to revoke the will, was the testimony of two of the subscribing witnesses that the seal put upon the will when it was executed was colored red, while the will when presented for probate, bore a seal of a green color, and larger size. Whether the seal originally put upon the document was different from the one borne by it at the trial was a question of fact determinable by the jury, according to the comparative weight, in their estimation, of the evidence furnished by the document itself (Fogg v. Moulton, 59 N. H. 499), which was admittedly sealed when executed, and that furnished by the recollection of the witnesses. Reasonable men might doubt the...