Walter v. Walter

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: COX
• Citation: Walter v. Walter, 301 Mass. 289, 17 N.E.2d 199 (Mass. 1938)
• Decision Date: 25 October 1938
• Parties: WALTER v. WALTER et. al.

301 Mass. 289

17 N.E.2d 199

WALTER

v.WALTER et. al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 25, 1938.

Proceeding for the probate of the will of Alice V. M. Judd, deceased, by Henry W. Walter against Susan Walter and others. From a decree of the probate court allowing the will but disallowing the first and second bequests therein contained, and from the denial of motion for additional finding of facts, the named defendant appeals.

Decree reversed and case remanded.Appeals from Probate Court, Suffolk County; F. J. Dillon, Judge.

J. F. Daly, of Boston, for petitioner.

J. E. Begley, of Boston, for respondent Edward J. McCormick.

C. T. Sexton, of Boston, for respondent Mary J. Sheerin.

COX, Justice.

These are two appeals by Susan Walter (1) from a decree of the Probate Court allowing the will of Alice V. M. Judd, late of Boston, by the terms of which decree, however, the first and second ‘bequests' therein contained were disallowed, and (2) from the denial of her motion for additional findings of fact. The decree allowing the will recites, among other things, that it ‘appears that the first and second bequests in said instrument were revoked by obliteration by the testatrix after execution of said instrument, that said bequests were so erased and marked out by the testatrix as not to be capable of interpretation at the time the said instrument was offered for probate, and said first and second bequests are disallowed,’ and ‘that said instrument in all other respects be approved and allowed as the last will and testament of said deceased.’ The probate judge filed a voluntary report of material facts which recites that the testatrix died on March 7, 1937, leaving as her heirs at law and next of kin Mary J. Sheerin, a sister, and Edward J. McCormick, a brother; that ‘It was agreed by all parties that the obliterations and interlineations were made by the testatrix after the will had been executed. The testatrix intended to cancel the first and second bequests in her will and to that end erased and crossed out certain substantial and necessary portions of each bequest by the use of an eraser and ink. The testatrix then inserted certain interlineationsin both bequests. There was no republication or reexecution of the will at any time. There was no codicil.’ A photostatic copy of the will is incorporated in the report by reference, and is attached to the record.

Thereafter Susan Walter filed a motion for additional findings of fact in which it is set out that at the hearing on the allowance of the will Henry Walter, the executor named, testified that prior to the obliterations or interlineations the will read as follows: ‘To Susan Walter * * * I bequeath the house and land and garages situated as [sic] 743 Cambridge St., Brighton, Boston, Mass. To my niece, Mary G. Dwyer, * * * I bequesath the house and land situated at 737 and 739 Cambridge St., Brighton, Boston, Mass.,’ and asked that a date be assigned for a hearing to take testimony, if need be, ‘to establish the fact as to how said will read prior to such changes in order that a complete report of the facts can be had.’ The probate judge declined ‘to find further or additional facts.’ In the photostatic copy of the will the first devise appears as follows: ‘To Susan Walter * * * I bequeath the house and land * * * [then there follow words which have been obliterated in whole and in part by ink, the first one of which is ‘and’ and the last ‘situated,’ the others cannot be read] at * * * [then there follows an ink obliteration, evidently a number of which the first figure is ‘7,’ with space for two other digits and over which obliteration is written in ink ‘737 & 739’] Cambridge St Brighton Boston Mass.' The second devise appears as follows: ‘To my neice [sic] Mary G. Dwyer * * * I bequeath the house and land situated at * * * [then there follow ink obliterations of a number consisting of three digits, the first and last of which are the figure ‘7,’ and the second being illegible, followed by the character ‘&,’ the figure ‘739’ and the words ‘Cambridge St.’ over which obliteration is written in ink ‘743 Cambridge St. & Garages'] Brighton Boston Mass.’ In the voluntary report of material facts the probate judge states: ‘The contestants have not appealed from the entry of this decree [allowing the will]. The appeal having been taken by the proponents of the will to the form of the decree wherein the first and second bequests of said will were decreed to have been revoked by the testatrix by obliteration, I report the facts bearing on that issue only.’ No appeal of the proponent appears in the record or in the docket entries. The only appeals which appear in the record are those of Susan Walter.

G.L. (Ter.Ed.) c. 191, § 8, provides, among other things, that a will once properly executed can be revoked ‘by burning, tearing, cancelling or obliterating it with the intention of revoking it, by the testator himself * * *.’ See Worcester Bank & Trust Co. v. Ellis, 292 Mass. 88, 92, 197 N.E. 637. And it is the law in this Commonwealth that a cancellation by a testator, after execution, of certain clauses in his will, with the intention of revoking them only, is a valid revocation of such clauses, but not of the whole will. Bigelow v. Gillott, 123 Mass. 102, 25 Am.Rep. 32. In the case of Sanderson v. Norcross, 242 Mass. 43, 45, 46, 136 N.E. 170, 171, Rugg, C. J., said: ‘The doctrine is widely established that a revocation of a valid will, which is so intimately connected with the making of another will as to show a clear intent that the revocation of the old is made conditional upon the validity of the new, fails to become operative if the new will is void as a testamentary disposition for want of proper execution. Revocation in its last analysis is a question of intent. A revocation grounded on supposed facts, which turn out not to exist, falls when the foundation falls. Hitherto this court has never had occasion expressly to pass upon the soundness of this precise doctrine, aothough it was adverted to...