Williams v. Williams

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: C. ALLEN, J.
• Citation: Williams v. Williams, 142 Mass. 515, 8 N.E. 424 (Mass. 1886)
• Decision Date: 22 October 1886
• Parties: WILLIAMS and others, Ex'rs v. WILLIAMS.

142 Mass. 515

8 N.E. 424

WILLIAMS and others, Ex'rs v. WILLIAMS.

Supreme Judicial Court of Massachusetts, Hampden.

October 22, 1886

COUNSEL

Ely Bros., for appellant.

The simple statement, made by the testator at the time he executed the last will, in regard to keeping all three, and the destruction of the first and last wills, and the finding of the second will, as reported, is not sufficient evidence to warrant the finding that he intended to revive the second will. The instrument offered for probate is not the last will and testament, because a will cannot be executed, and is not properly executed even if it purports to be, unless the testator unreservedly and unqualifiedly, either by word or deed, publishes it as his last will and testament, as by statute provided; because the statement made by the testator at the time he executed the last instrument, coupled with the instrument executed, brought all three of the instruments to a common level of unpublished, unexecuted wills; because a testator cannot have three last wills and testaments,--the destruction of one was a cancellation of all.

S Sanders, for executors and appellees.

No reasons are assigned for the second appeal, and no evidence reported. There is nothing whereon to base a revision of the facts found, except those found conditionally on the testimony of a single witness. Ross v. Harper, 99 Mass. 175; Smith v. Townsend, 109 Mass. 500. But all inferences of fact, questions of discretion and of law involved in the decree affirming the decree of the probate court, including the question made by appellees, that revocation by later will is not open to contestant, under his reasons assigned for his first appeal, are open to revision. Smith v. Townsend, ubi supra; Wright v. Wright, 13 Allen, 207; Allen v. Allen, 117 Mass. 27. But the making and publishing of unproduced wills cannot be proved by a single witness, however credible, he not appearing to be an attesting witness to such wills, and the other witnesses thereto not being produced, nor their absence explained. Pub.St. c. 129, § 1; Chase v. Lincoln, 3 Mass. 236; Bailey v. Stiles, 2 N.J.Eq. 220-231; 3 Redf.Wills 15, pl. 16, note 11. But admitting the fact of a later will, containing a revocatory clause, and that the question of revocation is open to the contestant, it then becomes a question of republication or revival, which is a question of intention, to be collected from all the circumstances of the case, (Pickens v. Davis, 134 Mass. 252;) and the court has found that "the testator intentionally destroyed the first and third wills, and retained the second, intending to revoke the first and third wills, and to retain the second as his last will." This is equivalent to finding a revival, if there had in fact been a revocation; and this finding "will not be reversed, unless clearly shown to be erroneous." Slack v. Slack, 123 Mass. 443. And if there was any evidence sufficient to establish the revocatory clause of a third or revoking will, the same evidence was sufficient to establish the whole will, and should have been offered to set up such will in the probate court, and not in this court to establish a revocation. Reid v. Borland, 14 Mass. 208; Laughton v. Atkins, 1 Pick. 535; Wallis v. Wallis, 114 Mass. 510; Stickney v. Hammond, ...