Crosby v. Crosby

20 Ohio C.C. Dec. 14

• Court: Ashtabula Circuit Court
• Decided: January 15, 1907
• Status: Published

Opinion

'CO.Óirt

it? !l&8®ctioh below was the contest 'ofá will.’ The principal ground 'of'-^^test was, that the testator intentionally revoked the - will-before-Tris death by canceling and obliterating the same.

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The evidence is’very conflicting upon the/question .as to liów the erasure of the original name came to be made, whether it was done-for the purpose of simply correcting 'the signature and before execution or whether it was’doné with the intention,of revoking the will.

The jury found it was done 'with the intention,of revoking it and' we feel the jury was. fully justified'in'so Ending and 'the* trial court-in confirming the verdict. . ... .. .. - . „

The. important question in the ease,. however, is "upon the charge of the court. The court charged' the. jury that if they, should fin'd‘that the will remained in the possession, of the testator, from the time of its execution until his death, then jit would be presumed that the testator himself erased, his name and thát he did so with the ihtentioú of revoking’the will. Was this correct? , . , , . ,

, While, so far as we. aré aware, there is no case.in Ohio directly, .bearing upon this question, yet'many ’decisions in other ,'statés support the charge.of the court and we.think was'correct, ‘ '

In the case of Smock v. Smock, 11 N. J. Eq. (3 Stock.) 156, it was held:

c 1. ..A writing s.ought to be. prqyed last will of decedent, was executed by him' as his will in due, form of law, in\-1846, . After fektator’s, death in - it was found, on theAay.of his funeral, by'his widow and.two of his .sons, in a private, desk of decedent, It .was wrapped up, in a newspaper, ...íhe^name of testator ,ahd the seal were cut off; with,a sharp .ihstrupient,.leaving, only the letter"B — . the first-letter'of .testatpr’s name — partly .'remaining.Iffeld,..that.the testator is presuméd to have done the act, and that the law further pr^- . ’ ' ’ V dt (. ■ .1 5 , V1 ' <J sumes he did it amyio revocando,” „ . ... A n t

In the opinion of the chancellor it is. said, page 162:

.. v'. '■> ¿j.,.- CA. f j.u ill ])- ft W ITL philxl The will was m the custody oi the testator during his lire JO. and upon bis death it was found among bis depositories, canceled, with bis name and seal cut oft. Under such circumstances, the testator himself is presumed to have done the act, and the law further presumes that he did it animo revocandi. 1 Williams, Exrs. & Admrs. 78. In a late case, decided in the prerogative court (afterwards taken up on appeal to the delegates, where the decision below was affirmed), a will was found in the repositories of the deceased, and it appeared that some one had carefully cut out, apparently with the scissors, the whole of the instrument from its marginal frame; the attestation clause was also cut through, but no other part of the writing; and it was held that the court was bound to construe the act as one done by the testatrix for the purpose of canceling, revoking, or destroying the validity of the instrument, and consequently that it was thereby revoked. Moore v. Moore, 1 Phillim. 375; 1 Williams, Exrs. & Admrs. 74. The same principle will be found established by the following cases: Freeman v. Gibbons, 2 Hagg. Ecc. 328; Bumgarten v. Pratt, 2 Hagg. Ecc. 329; Richard v. Mumford, 2 Phillim. 23; Loxley v. Jackson, 3 Phillim. 126: Wilson v. Wilson, 3 Phillim. 552; Davis v. Davis, 2 Add. Ecc. 223; Colvin v. Frazer, 2 Hagg. Ecc. 266; Holland v. Ferris, 2 Bradf. (N. Y.) 334; Bulkley v. Redmond, 2 Bradf. (N. Y.) 281, 282; Betts v. Jackson, 6 Wend. 173, 180.”

In White, In re, 25 N. J. Eq. 501, it is held:

“The tearing out of the seal affixed to a will, and of part of the testator’s signature, and the obliteration of the rest of his name and of the names of the witnesses, are a cancellation of the will.

“From the finding of a will in testator’s box thus canceled, the presumption arises that the cancellation was his act, done animo cancellan-di, and that, by that act, he intended to render the will null and void.

In the opinion it is said:

“The will bears clear evidence of the intention to revoke it. The tearing out of the seal and of part of the signature of the testatrix, and the obliteration of the names _ signed to the will, are a cancellation of the will. Avery v. Pixley, 4 Mass. 460; Hobbs v. Knight, 1 Curteis 768; Goods of James, 7 Jur. N. S. 52; Price v. Powell, 3 H. & N. 341; Smock v. Smock, 11 N. J. Eq. (3 Stockt.) 156. And from the fact that the will was found in the'possession of the testatrix, in her repository, thus candeled, the presumption arises that the cancellation was her act, done animo cancellandi, and that, by that act, she intended to render the will null and void. Smock v. Smock, supra; 4 Kent’s Commentaries 532; Davies v. Davies, 1 Lee 444; Lambell v. Lambell, 3 Hagg. 568; Baptist Church v. Robbarts, 2 Pa. St. (2 Barr) 110.”

Judgment of court of common pleas affirmed.