Walter v. Walter

• Decision Date: 25 October 1938
• Citation: 17 N.E.2d 199,301 Mass. 289
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HENRY W. WALTER v. SUSAN WALTER & others.

301 Mass. 289

17 N.E.2d 199

HENRY W. WALTER v. SUSAN WALTER & others.

Supreme Judicial Court of Massachusetts, Suffolk.

October 25, 1938

May 6, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, DOLAN, COX, & RONAN, JJ.

Will, Revocation single clause. Evidence, Competency, Extrinsic affecting writing.

If it appears that a testator, in attempting an alteration of a provision of his will by obliteration and interlineation after its execution intended that the revocation of the part obliterated should be conditional upon the validity of the interlineation as a substitute, and that the interlineation was not duly authenticated, parol evidence is admissible to prove the original wording of the provision.

Findings that after the execution of a will the testator obliterated the description of the real estate given in a devise and then interlined a different description, without reexecution, did not warrant a conclusion that he intended to revoke the original devise irrespective of the validity of the alteration.

PETITION, filed in the Probate Court for the county of Suffolk on March 11 1937, for proof of the will of Alice V. M. Judd, late of Boston.

The case was heard by Dillon, J. In this court the case was argued at the bar in May, 1938, before Lummus, Qua, Dolan, & Cox, JJ., and afterwards was submitted on briefs to all the Justices.

J. F. Daly, for Susan Walter.

J. E. Begley, for Edward J.

McCormick.

C. T. Sexton, for Mary J.

Sheerin.

COX, J. 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 interlineations in 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 bequeath the house and land situated at 737 & 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," 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 that appear in the record are those of Susan Walter.

G. L. (Ter.

Ed.) c. 191 Section 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 . 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 . In the case of Sanderson v. Norcross, 242 Mass. 43, 45-46, Rugg, C.J., said: "The doctrine is widely established that a...