Whitehill v. Halbing

• Decision Date: 11 August 1922
• Citation: 98 Conn. 21,118 A. 454
• Court: Connecticut Supreme Court
• Parties: WHITEHILL v. HALBING et al.,

118 A. 454

98 Conn. 21

WHITEHILL v. HALBING et al.,

Supreme Court of Errors of Connecticut.

August 11, 1922

Appeal from Superior Court, New Haven County; L. P. Waldo Marvin Judge.

Francis A. Whitehill appeals from a decree of the court of probate for the district of New Haven approving and allowing a document offered as the will of Barbara Ploeger under which Mathilda Halbing and others were beneficiaries.Verdict directed for the defendants, confirming the decree of the court of probate, and appeal by the plaintiff.No error.

The court directed the verdict upon facts agreed upon by all parties to the appeal.Among these facts it appears that on July 31, 1914, Barbara Ploeger duly executed her will in duplicate.On April 7, 1919, she duly executed another will expressly revoking all former wills made by her.Of this will two copies were made, but not executed, and the three papers were taken into her possession by the testatrix.In September, 1919, and again in February, 1920, she consulted lawyers about drawing a new will, and expressed an intention to do so; but, although several different drafts were prepared, she was not willing to execute any of them.She died March 9, 1920.Afterward both of the executed duplicates of the will of 1914, and also both of the unexecuted copies of the will of 1919, were found among her valuable papers; but no will later than that of 1914 was found.The testatrix had destroyed the will of 1919, knowing at the time that the will of 1914 was still in existence.

Upon the trial the defendants claimed that when the testatrix destroyed this later will she did so with the intention that the will of 1914 should be her last will, and believed that the will of 1914 was her last will until her death.To prove this claim the defendants offered three witnesses to whom the testatrix had stated during her lifetime that such was her intention and belief.The plaintiff objected to this testimony on the ground that it was immaterial, and the court sustained this objection, and the defendants excepted.Thereupon their bill of exceptions was allowed and made a part of the record for review by this court according to General Statutes, § 5839.

Wheeler C.J., dissenting.

Charles S. Hamilton, of New Haven, and Wallace A. Kroyer, of New York City, for appellant.

Samuel A. Persky and William J. Kennedy, both of New Haven, for appellees.

BURPEE, J.

The decisive question raised in this appeal is whether a later will containing a clause expressly revoking all former wills takes effect immediately and finally, so that after its destruction by the testator a former will existing at the time of his death shall not be approved and set up as his last will.In deciding this question we are governed solely by the statute of wills of this state, which was enacted in 1821.That statute changed the law which had been in force before that time, and under which the case of James v. Marvin,3 Conn. 576, was reserved for the consideration of this court.It changed " the aspect of the *** question.It is not now what it was when James v. Marvin was decided."That case did not answer the precise question before us now.Peck's Appeal, 50 Conn. 562, 565, 47 Am.Rep. 685.And to this question that case is not applicable.Security Co. v. Snow,70 Conn. 288, 294, 39 A. 153, 66 Am.St.Rep. 107.We said in Peck's Appeal:

That before 1821" any written declaration to that effect revoked a will irrespective of any statute and without regard to the death of the testator.Now the statute requires that the writing, in order to have that effect, must itself be a will or codicil, and executed with all the formalities required for such instruments."

That statute, which has not been changed in any respect material to this subject, now reads:

" No will or codicil shall be revoked in any other manner except by burning, canceling, tearing or obliterating it by the testator or by some person in his presence by his direction or by a later will or codicil."General Statutes, § 4946.

This statute is " not only directory but prohibitory and exhaustive."Irwin's Appeal, 33 Conn. 128, 135.It allows to every person the privilege of individual control over his estate after death only upon certain conditions, and no such power " is given to any one who does not come within and strictly comply with these conditions."Hatheway v. Smith,79 Conn. 506, 518, 65 A. 1058, 1062(9 L.R.A. [N. S.] 310, 9 Ann.Cas. 99).The language of this statute is precise and unambiguous.No oral declaration, nor any writing, however framed or executed, whether it be an independent instrument or a clause in a will, can be effective at any time to revoke a will unless it has in itself all the characteristics of a will or codicil.

" A will is the legal declaration of intention as to the disposition of one's property after death.To this intention, made known through the written declaration, the law gives effect, and so executes the testator's will."Jacobs v. Button,79 Conn. 360, 362, 65 A. 150, 151.

The subject-matter of a will is the estate of the person, which can be affected, by his intent properly expressed-

" only after the death of the testator.The term may be thus defined.A will is the lawful intent of a competent person, legally expressed, regarding his estate, and effective after his death."1 Alexander's Commentaries on Wills, p. 25.

" A will is the expression, in the manner required by law, and operative for no purpose until death, of that which one may lawfully require to be done after his death."Gardner on Wills (2d Ed.) 1.

Each devise or bequest thus expressed and made known in writing is the " will" of the testator, irrespective and independent of every other provision.Hatheway v. Smith,79 Conn. 506, 511, 65 A. 1058, 9 L.R.A. (N. S.) 310, 9 Ann.Cas. 99.So, also, by the explicit terms of the statute, an effective revocatory clause, thus expressed and made known in writing, must be a " will."It is true, as was said in James v. Marvin, that " it is never a necessary part" of a will.Neither is any other provision a necessary part of a will.Only the formalities prescribed by statute are necessary parts.Any other part may be omitted or may be changed by the testator without affecting another part which the will contains when it is presented for probate; but each of these parts, to be effective, must be a will.None has any vigor of its own.The strength of each is derived solely from the law which executes the legally expressed intention of the testator, but applies its force only after his death.The intention to devise is expressed usually in the present tense, as " I devise."So is the intention to revoke former wills, as " hereby revoking."But no one contends that a clause devising lands takes effect immediately upon the execution of the will and vests the title then in the devisee.There is no indication of the testator's intention to give, nor any logical reason for giving, to a revocatory clause more immediate force and results than are given to a devising clause.On the contrary, our statute of wills indicates plainly that such instantaneous force and final consequences were not to be given to any revocatory writing.It was said in James v. Marvin that at that time in this state " a clause of express revocation" in a will operated the same as " a deed of revocation, separate from a will" ; that is, instantaneously, of its own force, finally, and irrespective of the subsequent destruction of the will.But the Legislature did not see fit to include such a separate writing among the exclusive means prescribed whereby only a will may be revoked.The manifest inference is that it was not intended to continue to grant the privilege of revoking a will with the effect and consequences which a separate revocatory writing had before the statute was enacted.

By the common law of England before 1837, a revocatory clause in a will perished with the will.The effect of the destruction of a second will, containing such a clause, " was to revive the first."1 Jarman on Wills (6th Eng. Ed.) 192;1 Alexander's Commentaries on Wills, p. 754;Gardner on Wills (2d Ed.)p. 241.In Goodright v. Glazier, 4 Burr. 2512, Lord Mansfield said, in 1770:

" A will is ambulatory till the death of the testator.If the testator lets it stand till he dies, it is his will; if he does not suffer it to do so, it is not his will.Here, he had two.He has canceled the second: it has no effect, no operation; it is as no will at all, being canceled before his death.But the former, which was never canceled, stands as his will."

And Mr. Justice Yates, concurring for the same reasons, added:

" A will has no operation, till the death of the testator.This second will never operated: it was only intentional.The testator changed his intention, and canceled it.If by making the second, the testator intended to revoke the former, yet that revocation was itself revocable: and he has revoked it."

In 1774, the same respected authority declared in Harwood v. Goodright, 1 Cowper, 87, 92:

" Therefore a revocation must be shown and the mode of doing that is by another will.But that is not all; for he[the heir at law] must show in fact that it was revoked by another will which subsisted at the death of the testator; because if a testator makes one will and does not destroy it, though he makes another at any time virtually or expressly revoking the former, if he afterwards destroy the revocation, the first will is still in force and good."(The italics appear in the report.)

This principle was recognized in Burtenshaw v. Gilbert, 1 Cowper, 49, 52, wherein Lord Mansfield, less than two months before the decision of Harwood v. Goodright, said that " a complete, legal, and...