Burtt Will

44 A.2d 670, 353 Pa. 217, 162 A.L.R. 1053, 1945 Pa. LEXIS 285

• Court: Supreme Court of Pennsylvania
• Decided: November 28, 1944
• Docket: Appeal, 188
• Status: Published

Opinions

Opinion by

Mr. Justice Allen M. Stearns,

This appeal concerns the revival of a revoked will.

The protracted litigation in this case was occasioned by the attempt of a layman to write his own will. The danger attending such an effort is aptly suggested by the late Judge John Marshall Gest in his interesting book, Drawing Wills and Settlement of Estates in Pennsylvania. He employs the following language: “Every man who knows how to write thinks he knows how to write a will, and long may this happy hallucination possess the minds of our lay brethern, for surely St. Ives, the patron Saint of lawyers, extends to none a heartier welcome in the life beyond than to the J oily Testator who makes his own will.”

Decedent, in his holographic testamentary effort, succeeded in raising a question which for over two centuries has perplexed English and American judges and divided courts in both countries. The controversial topic is the revival of a prior will by the revocation of a later will. Extensive discussions on the question appear in the decided cases, legal encyclopaedias and articles in law magazines and reviews, including one by a recent member of tbe United States Supreme Court written when an active lawyer and law school professor. To the already difficult problem decedent has added another question which has never before been squarely raised and decided in Pennsylvania, viz: does a distinction exist between a later revoked will containing an express clause of revocation and one where the revocation is occasioned because of inconsistent provisions? It is upon this subsidiary question that the litigation hinges.

Judge Hunter, the hearing judge in the orphans’ court, ruled that testator’s later will revoked his earlier one because of inconsistent provisions, under Section 20 of the Wills Act of June 7,1917, P. L. 403, 20 PS section 181. He decided that under Ford’s Estate, 301 Pa. 183, 151 A. 789, the evidence clearly indicated that decedent did not intend to revive the earlier will. He decreed that probate of the earlier will should be set aside. A majority of the court in banc reversed in an opinion by President Judge Van Dusen. It was decided that because there was no express clause of revocation in the later-will the earlier will was revived. Judges Hunter and Sinkler dissented. This appeal followed.

The facts are undisputed. Decedent, a layman, in his late eighties, with a modest estate of |3500, was employed by, and had a desk in the office of, a highly respected member of the Philadelphia Bar. He was unmarried. His nearest of kin was a cousin. In a search for a will after the death, there was found in a locked drawer of his desk at the office, a mass of testamentary papers in decedent’s handwriting consisting of between 50 and 60 sheets. None of the papers bore his signature except a will of 1906 and a will of 1939 in which the signature had been cancelled. There was also a note addressed to his executor, but it contained no testamentary dispositions. These papers constitute decedent’s testamentary effort. The will of 1906 was the only paper susceptible of probate. It was probated.

This holographic will of 1906, written thirty-three years prior to the later cancelled will of 1939, is a mere remnant. In it 198 words are crossed out, three paragraphs are entirely obliterated and a fourth paragraph partially so, and 34 words are interlined. The words “Invalid” and “N. Gr.” appear at the top of the paper and the word “Invalid” on the back, all in decedent’s handwriting. With the cancellations eliminated, the remaining dispositive words are:

“. . . it shall revert in its entirety, to . . . aforesaid; or, failing her by reason of her decease, said legacy

Mrs. Elizabeth Angeshall revert to her children, man the survivor or survivors of them

3607 Fairmount Avenue, West Philadelphia.”

Whether such a jumble of words constitutes an effective testamentary disposition is a matter of grave doubt. But however difficult it may have ultimately proven to declare testator’s intent, we regard the writing, standing alone, as probatable, with its meaning a matter of will construction. See Rockett Will, 348 Pa. 445, 35 A. 2d 303, and cases therein cited.

The later will of 1939 was likewise imperfect. It consisted of five sheets of paper, in testator’s handwriting, held together with a sliding metal clip. The will was not dated, but its approximate date was proven by the subscribing witnesses to be in the middle of August 1939. It disposed of the estate in an entirely different manner than the earlier will of 1906. Testator’s signature and those of the subscribing witnesses to the 1939 will were crossed out.

It was proven by parol evidence that at the time decedent signed the will of 1939, he said that he was about to make a new will. A letter, signed by testator and written a few days after he executed the 1939 will, stated that he was then engaged in preparing another will as the final expression of his wishes. We are there fore confronted with a probatable will, which had been revoked by a later inconsistent will. As such later will was subsequently revoked by cancellation, the ancient question arises whether evidence may be adduced to prove that testator did not intend to revive the prior will.

A will is defined by Blackstone, Yol. II — *449 as “The legal declaration of a man’s intentions, which he wills to be performed after his death.” It has been declared that this definition stands unchallenged for its simplicity and accuracy: McCune’s Estate, 265 Pa. 523, 109 A. 156; Gibson’s Estate, 128 Pa. Superior Ct. 44, 193 A. 302. In determining whether any particular testamentary writing constitutes a will, it must first be ascertained whether it is a legal expression of the decedent’s testamentary intentions. Thus, where a decedent had executed a probatable will, which he later revoked, and then had cancelled or revoked such revoking will, must the first will be accepted as the exclusive expression of the decedent’s testamentary wishes? Frequently it appeared that the first will had been lost, misplaced or forgotten, or in destroying or revoking the later revoking will, decedent really intended to die intestate. Whether circumstances or expressions indicative of such intent are admissible to establish that decedent did not intend to revive the first will is a troublesome question.

In early times there existed a divergence of opinions between the ecclesiastical law and the common law. The ecclesiastical courts decided that the revocation of the first will took effect at the execution of the second one, but that the first will might be revived if the evidence disclosed this to be the testator’s intention. The common-law courts, on the contrary, took the position that a revocation of a prior will was ambulatory and therefore did not take effect until the death of testator; if the revoking will itself was subsequently revoked the former will stood as if the later will had never been executed. Two statutes were enacted by the English Parliament: the Statute of Frauds, 29 Car. 11 (1676), C. 3, section 6, providing that no written will should be revoked “but by writing”; and the Statute of Victoria, 7 Wm. IV & 1 Vic. C. 26, section 20 and section 22, which provided that “No will . . . which shall be in any manner revoked, shall be revived, otherwise than by the re-execution thereof. ...” The English statutes settled the question in that country. Since the adoption of .the Statute of Victoria, in England, once a will is revoked it may not be revived except by a formal republication.

In America, the forty-eight states have variously adopted the ecclesiastical law, the common law, or statutes upon the subject. For a review of the cases and articles supporting the foregoing summary see: 68 Corpus Juris, page 856, et seq.; Jarman on Wills (7th Ed.), Vol. 1, page 178; Page on Wills (Lifetime Edition), Vol. 1, page 858, et seq.; Hutton’s Wills in Pennsylvania, page 218, et seq.; article by Professor W. W. Ferrier, Jr., “Revival of a Revoked Will”, 28 California Law Review 265; article in 28 Kentucky Law Journal 227; annotation to Whitehill v. Halbing (Conn.), 28 A. L. R. at page 911; article by Owen J. Roberts (late a Justice of the United States Supreme Court), “The Revival of a prior Will by the Revocation of a Later Will”, Vol. 48, The American Law Register, page 505.

The pivotal question in this case — may an intention be shown not to revive a former will where a later revoked will is inconsistent therewith — has been considered by various courts and authors. An examination of the cases, text books and articles above noted convinces us that the conclusions reached in 28 Kentucky Law Journal, at page 229, et seq., explain the situation most accurately: “Due to hasty statements on the part of text-writers and ill-considered dicta on the part of courts there is much more confusion on this matter than is justified by the actual holdings of the courts. This confusion is due in no small part to the fact that decisions are so often affected by the various state statutes and because different jurisdictions follow different rules.” And further, at page 233: “The question whether there is a distinction between a later will which revokes by express terms and one which revokes by implication, only, is inseparably connected with the proposition that express revocation is immediately effective. In many states this question is settled by statute. Although there are many dicta on the question only three states are generally conceded to distinguish between the two kinds of wills, and of these, only one has given ... an unequivocal decision in both respects.” The three states referred to by the writer are Texas, Michigan and Wisconsin. It is also interesting to note that this question was considered by the Hon. Roscoe Pound, a commissioner to the Supreme Court of Nebraska and later the Dean of the Harvard Law School, in Williams v. Miles, 68 Neb. 463, 62 L. R. A. 383. Commissioner Pound recommended, and it was adopted by the Supreme Court of Nebraska: “. . . if the testator destroys a subsequent will revoking a former one either expressly or by implication, such act, of itself, will not operate to revive the former will. .. whether the former will is revived, depends upon his intention which is to he deduced from all the circumstances” (italics supplied).

The reason advanced for distinguishing between a revocation by empress words and one by inconsistent terms reverts to the old argument as to when the revocation of the former will is effective. As noted above, the common-law theory was that a clause of revocation, like a dispositive provision, was ambulatory in nature and was therefore not effective until death. The ecclesiastical courts regarded the revocation as immediate, but held that testator’s intention not to revive could be shown. The few states which make this distinction regard the revocation by inconsistency as ambulatory. Logically there is no basis for such distinction. If a will is effectively revoked under any of the terms of the Wills Act, the intention of the testator concerning the revival or non-revival of the prior will should he permitted to be shown. Apparently the first case in the United States to promulgate the distinction was James v. Marvin, 3 Conn. 576, but this case was subsequently overruled by Whitehill v. Halbing, 98 Conn. 21, 118 A. 454.

The distinction has never before been squarely raised in Pennsylvania. It is true that in the opinion in Ford’s Estate are quoted cases and text-book writers which make a distinction between express revocation and revocation resulting from later inconsistent provisions. This discussion is, of course, a dictum, as Ford’s Estate concerned a will in which there was an express clause of revocation. There is no difference in principle between a revocation by an express clause or by inconsistent provisions. If a testator bequeaths his estate to A, but subsequently concludes to give it to B, there is no fundamental difference in the expression of intention if testator says in the later will, “I revoke the bequest to A and give it to B”, or if he says, “I give all my estate to B.” In either instance testator has effectively revoked his former will in accordance with the provisions of the Wills Act. McClure’s Estate, 309 Pa. 370, 165 A. 24, specifically ruled that an inconsistent will operates as a revocation of the former will. Justice Kephart (later Chief Justice) said (page 375): “A will which makes a complete disposition of all the property of the testator is clearly incompatible with the existence of any former will, and it must operate as a revocation of all wills previously executed (1 Jarman on Wills, page 333), or, as stated in Teacle’s Est., 153 Pa. 219, ‘must operate as a revocation without express words to that effect.’ ”. We re-affirmed this principle, and cited McClure’s Estate with approval, in Hartman’s Estate (No. 1), 320 Pa. 321, 326, 182 A. 234. Because a revocation is effectively accomplished either by an express clause of revocation or by inconsistent provisions, it follows that in either case, proof of the revocation may be established by the production of the later written will with testator’s signature, duly cancelled, even though not susceptible of probate. It is not correct to state that proof of a revoked, unprobatable, inconsistent will is an extension of the doctrine of Ford’s Estate. It is merely applying the doctrine.

There are apparently only six reported appellate cases in Pennsylvania which deal with the question of the revival of a former will by the cancellation of a later revoking will.

The first case, arising in 1792, was Lawson v. Morrison, 2 Dallas 286. In that case testatrix executed her will in 1775. She wrote a later will in 1779. Both wills were kept in the possession of a third person. At the death of testatrix the later will of 1779 was not found, although the will of 1775 remained intact. The contents of the will of 1779 were not proven and it was not established that it had revoked the former one. The syllabus concisely states: “The fact of the execution of a second will, not found at the decease of the testator, and the contents of which are not shown, is not, ipso facto, the revocation of a former one; to have that effect, its existence must be shown, at the death of the testator, or that he cancelled the latter will, with an intent to die intestate.” McKean, the Chief Justice, wrote (page 290) : “Here is a good subsisting Will properly attested: There is no way to defeat it, but by proving it was revoked by another will, subsisting at the death oí the Testatrix, or that she cancelled the latter Will, so revoking all former ones, with a mind to die intestate” (italics supplied). It will thus be noted that as early as 1792 this Court stated that upon proving that a later will revoked the former one, the earlier will was not revived where the testator was shown to have an intent to die intestate.

The next case, which arose in 1796, was Boudinot v. Bradford, 2 Dallas 266. Testator executed a will, but later made another will which he later destroyed, Dr, Rush (probably Dr. Benjamin Rush) testified to declarations of testator that he had made and destroyed his later will intending to die intestate. The court ruled that such testimony was admissible to establish “whether, by cancelling the second will, [testator] meant to revive the former instrument, or to die intestate.” Chief Justice McKean, in his opinion, sustained this ruling and said (page 268) “1st. Where a second Will is made, containing an express clause of revocation, the preceding Will, though not formally cancelled, is revoked. 2d. Where a second Will is destroyed, without more, the preceding will, not' having been cancelled, is, generally speaking, ipso facto, revived. 3d. Where a second will is cancelled, under circumstances that manifest an intention either to revive, or not to revive, the preceding Will, those circumstances must be proved.” (Italics supplied.)

Apparently the next case, in 1848, was Flintham v. Bradford, 10 Pa. 82. Testator made his will in 1821, which he revoked by a will made in 1824. Two questions were raised: (1) “whether the will of 1821 was restored and revived by the cancellation of the posterior will of 1824”, and (2) “whether the evidence offered . . . and rejected . . . ought to have been admitted.” The will of 1824 revoked the earlier one by inconsistent provisions. The signature to the 1824 will had been can-celled. Testimony was offered and rejected to prove the changed condition of testator’s estate between the date of the first will and that of a later will in 1835, and declarations of testator after 1885 inconsistent with an intention to revive the will of 1821. Chief Justice Gibson sat as the Nisi Prius judge. In rejecting the evidence, he said (page 85) : “It was accurately said by Chief Justice McKean, in Lawson v. Morrison, 2 Dali. 286, that the destruction of a will which repealed or superseded a previous one, leaves the first as if the second had not existed, unless it he clearly proved that the second was destroyed with a view to die intestate. Such is the result whether the second contain a elapse of revocation or not; for neither of them takes effect till the testator’s death; the revocation of the second restores the first to the footing on which it stood before the second existed; and the first necessarily, as well as naturally, takes effect at the death, unless the testator had signified by some decisive act or declaration, at the time of the revocation, an intention to die intestate.” (Italics supplied). The Chief Justice also said that testimony indicating testator’s intention to revive or not to revive the former will must relate to “the time of destruction” of the later will, otherwise it would be a parol revocation forbidden by statute (i. e. Wills Act of 1833). The Supreme Court, in an opinion by Coulter, J., affirmed the ruling of Chief Justice Gibson. Justice Coulter stated that if it was clearly proven that the testator, at the time he cancelled the posterior will, intended to die intestate (i. e. not to revive the earlier will) such evidence was admissible as part of the res gestae. He also stated that the act of the ■preservation of the prior will was evidence of intent to revive. But the Justice also said (page 90) that the prior will had been preserved by testator “entire, and without intentional or apparent blemish”, (Italics supplied.) which, as has been shown, is not the fact in the present case.

In 1909 the case of Kerchner’s Estate, 41 Pa. Superior Ct. 112, was decided. Testatrix made two wills. She burned the second will, declaring at the time, “the other last will shall count”. It was decided, in an opinion by Beaver, J., that the burning and declaration revived the first will, although the republication was by parol.

The next case, decided in 1911, was Manning’s Estate, 46 Pa. Superior Ct. 607. Here the testatrix made two wills. A few days before her death she burned the second will and said she intended to have a new will made. The Superior Court, in an opinion by Henderson, J., decided that the burning of the second will was not a revival of the earlier will in those circumstances.

The leading case is Ford’s Estate, 301 Pa. 183, 151 A. 789, decided in 1930. Testator, by a later will con- taming a clause of revocation, revoked all former wills. He cancelled this later will by tearing off his signature, declaring at the time that he intended to die intestate. It was decided that the earlier will was not revived. The opinion was written by Justice Schaffer, later Chief Justice. The ancient argument of the common law was strongly advanced that the revoking will was ambulatory and, as it was cancelled and destroyed in the lifetime, the prior will was to be regarded as never having been revoked. This contention was rejected. Justice Schaffer pointed out that the revocation of the earlier will was established by a cancelled will signed by testator. While this will was not dispositive because of its mutilation, it nevertheless constituted “another writing” under the Wills Act. It was decided that the evidence of what was said by decedent when he cancelled the later will was admissible to show his intent not to revive the earlier will.

In discussing whether a non-probatable will constituted “another writing” under the Wills Act, Justice Schaffer said (page 188) : “The court below bases its conclusion on the provisions of the 20th section of the Wills Act of June 7, 1917, P. L. 403, 409, which reads: ‘Section 20(a) No will in writing, concerning any real estate, shall be repealed, nor shall any devise or directions therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided; or by burning, cancelling, obliterating, or destroying the same by the testator himself, or by someone in his presence and by his express direction, (b) No will in writing, concerning any personal estate, shall be repealed, nor shall any bequest or direction therein be altered, otherwise than as hereinbefore provided in the case of real estate’ (with an exception as to nuncupative wills).

“We think the court too narrowly and literally viewed the language of the act and disregarded circumstances which should play a part in a just determination of what the legal situation was which was created by the testator’s acts. At the very outset of reasoning about the matter let it be observed that we are not dealing, as the court below seems to have concluded, with an attempt to set up an oral revocation of the will of 1924. It was revoked by writings admittedly signed by the testator, which writings so signed are produced. The court below says they are to be disregarded as writings to revoke the earlier will because as wills they could not be effective until he died, and neither for legal reasons was so effective. Dispositively this is so, but as ‘other writings’ which could be and were proved in the manner wills are, they were facts, which established that by solemn written declaration the decedent had wiped out the will of 1924. As against this we are asked to presume that when he tore and directed the further tearing of the pages of the 1927 will and thus revoked it, he intended to revive the one of 1924 when every circumstance in the record indicates that he did not.”

On three occasions since, this Court has re-affirmed this principle, and has cited Ford’s Estate, with approval. See Shetter’s Estate, 303 Pa. 193, 154 A. 288; Harrison’s Estate, 316 Pa. 15, 20, 173 A. 407; Koehler’s Estate, 316 Pa. 321, 322, 175 A. 424. The construction of Section 20 (a) of the Wills Act of 1917, supra, so enunciated in Ford’s Estate, was repeated in Shetter’s Estate, supra, page 197, in this language: “. . . The statute, however, does not limit revocation to ‘some other will’ but opens the door to ‘other writing’, and does not say this ‘other writing’ may not be an ineffective will, so long as it appears, as it does here, that the testator signed it.”

We are not unmindful that apparently Justice Sharswood did not regard an unprobatable will as “another writing” under the Wills Act. He so said in Rudy v. Ulrich, 69 Pa. 177. A careful examination of that case reveals that such statement was dictum. There the second will never revoked the first one because it was obtained by undue influence and was therefore void in its entirety. A later case, Hamilton’s Estate, 74 Pa. 69, quoted Justice Sharswood’s dictum. But this statement was a dictum upon a dictum. In that case, the second will never became effective because of a conditional provision, and hence the first will was never in fact revoked. No question of revival of a revoked will existed in either case. While the doctrine expressed by such dicta is in accord with the dissent in Ford’s Estate, that case, and the three cases which follow it, ruled precisely to the contrary.

Ford’s Estate was decided on September 29, 1930. This Court construed the 20th Section of the Wills Act of 1917, supra, and held an unprobatable will, signed by a testator, was “another writing” within the Act. This decision, unless changed by the legislature, has the same effect as if written into the body of the statute. Since the decision in Ford’s Estate, there have been eight regular sessions of the Pennsylvania Legislature. If the legislature believed that the decision was contrary to the intent and language of the Wills Act, it could easily have so amended the 20th section of that Act as to make the decision in Ford’s Estate no longer controlling in cases arising subsequent to the amendment. In Salvation Army Case, 349 Pa. 105, 36 A. 2d 479, we said at page 110: “. . . this Court’s construction of an act has the same effect as if written into the body of the statute at the time of its enactment: Lerch’s Estate, 309 Pa. 23, 28, 159 A. 868; see Buhl’s Estate, 300 Pa. 29, 32, 150 A. 86; Barnes Foundation v. Keely et al., 314 Pa. 112, 126, 171 A. 267. If our interpretation were not consonant with the legislative purpose, it was within the power of the legislature to amend the Act in order to effectuate that purpose. It is most significant, therefore, that two legislatures have convened and adjourned since our former decision, and no amendment to the Act, as construed by us, has been enacted by the legislative body. See Chester School District’s Audit, 301 Pa. 203, 214, 151 A. 801; Lower Nazareth Twp. App., 341 Pa. 171, 175, 19 A. 2d 92.”

The doctrine of stare decisis still prevails in Pennsylvania. To change a legal principle vitally affecting property rights is a legislative and not a judicial function. This Court has always rigidly adhered to the rule of stare decisis. A statutory construction, once made and followed, should never he altered upon the changed views of new personnel of the court. All of the cases reciting our policy to adhere strictly to the rule of stare decisis need not be collected and reviewed. What was said by us in a few of the latest cases will suffice: Mr. Chief Justice Maxey said in Monongahela St. Ry. v. Phila. Co. et al., 350 Pa. 603, 616, 39 A. 2d 909, “The doctrine of stare decisis is recognized and applied by the courts of this Commonwealth. In Smith v. Glen Alden Coal Co. et al., 347 Pa. 290, 32 A. 2d 227, this Court, speaking through the same Chief Justice, said (page 302) : ‘A rule of property long acquiesced in should not be overthrown except for compelling reasons of public policy or the imperative demands of justice.’ The doctrine of stare decisis is not confined to cases involving ‘rules of property.’ See Kilpatrick v. Commonwealth, 31 Pa. 198, 210, and Commonwealth v. National Oil Co., Ltd., supra, 'Stare decisis simply declares that, for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different’: Heisler v. Thomas Colliery Co., 274 Pa. 448, 452, 118 A. 394.” Mr. Justice Horace Stern said in Commonwealth v. Wucherer, 351 Pa. 305, at 308, 41 A. 2d 574: “Even were it deemed a doctrine which should no longer prevail, certainly, in the face of so venerable a history, the remedy should be sought, not in the courts, but in the legislature; the function of the former (at least where principles have become firmly imbedded in the warp and woof of judicial interpretation) being to declare what the law is, and that of the legislature to change existing law by statutory fiat”; and in Davis v. Pennsylvania Co., etc., 337 Pa. 456, at 464, 12 A. 2d 66: “An interpretation of law consistently followed by an appellate court over so long a period that it has become fundamentally imbedded in the common law of the Commonwealth should not be changed except through legislative enactment, which is a remedy always available and the proper one under our scheme of government. Otherwise the law would become the mere football of the successively changing personnel of the court, and ‘the knowne certaintie of the law’, which Lord Coke so wisely said ‘is the safetie of all’, would be utterly destroyed.”

The remaining question is whether the finding of the hearing judge “that testator had no intention, at the cancellation of the will of 1939, to revive the will of 1906, but on the contrary the cancellation was made with the intention of making a new will”, is supported by the evidence. It was overwhelmingly established that testator did not intend to revive the 1906 will. In addition to the completely different disposition in the will of 1939, testator wrote the words “Invalid” and “N. G-.” on the will of 1906 (then thirty-three years old); he wrote letters, produced in evidence, that he was engaged in preparing a new will; and together with the many other reasons recited by the hearing judge the intent not to revive appears most conclusively. It is clear that testator preserved the mass of writings merely as memoranda and guides to his future contemplated testamentary “masterpiece”, on which, according to his letter, he was then already engaged. As the hearing judge has stated, “The one circumstance in favor of the will of 1906 is its mere existence.” Testator’s intention will not be defeated by a groundless distinction between a later can-celled will containing an express clause of revocation and one making a completely inconsistent disposition. The earlier will in either case is presumptively revived. However, in this case, such presumption has been rebutted by evidence which overwhelmingly establishes testator’s intention not to revive the prior will.

The decree of the court below is reversed. Costs to be paid by the appellees.

Justices Linn and Patterson dissent.