Giddings v. Giddings

32 A. 334, 65 Conn. 149, 1894 Conn. LEXIS 73

• Court: Supreme Court of Connecticut
• Decided: December 1, 1894
• Status: Published

Opinion

Fenn, J.

The testator, William W. Giddings, died in 1893, seized and possessed of real estate inventoried at #17,050, and personal estate inventoried at #102,147.33. He left a last will executed in 1889, and a codicil executed in 1893, both of which were duly admitted to probate. So much of said will as is here material is as follows: —

“ Fifth. I give to my son, William H. Giddings, my block on Glen street, bounded etc. Sixth. I give to my son, Frederick W. Giddings, my house and lot on Cedar street, bounded etc. Seventh. I give to my son, George W. Giddings, my house and lot Nos. 163 and 165 West Main street, bounded etc. * * * Ninth. All the residue of my estate, both real and personal, I give to my three sons, William H. Giddings, Frederick W. Giddings, and George W. Giddings, share and share alike. Tenth. I give to my son, George W. Giddings, after the death of my said wife, the house and lot No. 173 West Main street.”

The testator left surviving, his widow, and the three sons named, and a grandson, the child of a deceased daughter, who were his heirs at law.

The codicil, omitting formal parts, is as follows:—

“ Whereas, since the execution of said will, I have sold the house and lot 163 and 165 West Main street, devised in section 7 of said will to George W. Giddings, I hereby revoke that portion of said will.

“ I have also sold house or block and lot on Glen street, devised in section 5th of said will to William H. Giddings. I therefore give to him the proceeds — five thousand dollars —instead.

“ I hereby republish and confirm my said will, except as hereby changed.”

At the date of the execution of said codicil the house and lot on Glen street had been sold, but the house and lot on West Main street had not been sold, but was then the property of the testator, and was not sold at the date of his death, but was still owned by him, in his possession, and is now a part of his estate.

Two questions are presented by the reservation for our advice. Mrst: Is the devise mentioned in section 7 of said will, to the said George W. Giddings, revoked by the clause of said codicil to said will. Second: If said devise is held to be so revoked, is said real estate part of the residuum, or is it intestate property which should be distributed to the heirs at law of the decedent.

In reference to the first question, in behalf of George W. Giddings, who claims that the devise is not revoked, the case of Dunham v. Averill, 45 Conn., 62, is relied on. In that case it was said, on page 80: “ It is true that the law will presume in favor of a devise or legacy that it is not annulled by a clause of revocation in a codicil if a mistake as to a fact moves the testator to write it and continue it in force, and he states in the writing what the fact is and therein shows that the revocation is made conditional upon its existence.” Other authorities cited in the brief support this general statement. Jarman on Wills, Vol. I., p. 351; Schouler on Wills, §410; Williams on Executors, Vol. I., 5th Ed., 149; Mordecai v. Boylan, 6 Jones Eq. (N. C.), 365; Campbell v. French, 3 Vesey, Jr., 321; Doe v. Evans, 3 Ad., & El., 228. But it is to be borne in mind that the question of revocation is “ altogether a matter of intent,” and that therefore the rule above stated only holds when it effectuates, and not at all when it defeats intention, and so are the authorities. It will be noticed that our own court, in the quotation above given, expressly limits the rule to cases where the mistake not merely exists, but is the moving cause, and the writing “shows that the revocation is made conditional upon its existence.” Schouler also, in his work on Wills, § 410, after stating the rule, and illustrating it by cases where the testator by a later will repealed legacies given by an earlier to his grandchildren, “they being all dead,” when in fact they were living; where benefits were conferred upon one described as husband or wife, who turns out not to be legally a spouse, by reason of some prior and existing marriage ; and where a testator treats a gift as made to A in an existing will, when it was in fact made to B, adds: “This rule regards the testator’s intent, and the impulse which moved him to dispose as he did; the courts treat the revocation accordingly as a sort of contingent or conditional one.” He further says, that where grounds are stated “ of whose falsity or truth the testator judged for himself, this rule does not apply.” He adds, also, citing Gifford v. Dyer, 2 R. I., 99, that not only must the mistake be apparent from the face of the testamentary papers, but also what the will of the testator would have been except for the mistake.

In Redfield on Wills, Vol. I., side p. 359, the author speaks of the general rule, that legacies and revocations founded in mistake shall not operate, as “ very questionable in principle,” and gives cogent reasons which would be unanswerable if such rule was to be understood as extending further than to effectuate manifest intention. Perhaps the case nearest in similarity to the present, which can be found in the reports, is that of Hayes v. Hayes, 21 N. J. Eq., 265. In that case there was a codicil revoking in express terms a legacy in the will, because the testator had provided the legatee with a permanent home, when in fact he had not so provided. It was held that the revocation was operative. The court, citing Campbell v. French, 3 Vesey, Jr., 321, and Kennell v. Abbott, 4 Vesey, Jr., 808, claimed to be contra, said: “ In this case no mistake is shown; he had not made a provision that was permanent, but he must have known whether he had so provided or not. He had provided a home, and may have intended to make it permanent at some future time, and omitted to do so, either from neglect or because he had changed his mind, which he had a right to do. * * * This case does not fall within the principle of these decisions, and it would be dangerous to extend it. It would cause every recital of a faithful wife, or trusty friend, or honest servant, to be inquired into to affect the validity of the bequest.”

In the case before us, whatever may have been the reason why the testator made the statement which he did, in the codicil, concerning the sale of the house and lot on West Main street, regarding which the record is silent, not only must he have known whether he had sold it or not, but there appears to be abundant reason to believe that it could not have been the intention of the testator to make the revocation conditional upon the fact of the sale. Certainly it is not manifest that it was his intention to make it so conditional. It appears that in the will he had given each of his other sons one piece of real estate specifically, but he had given George W. Giddings two pieces, in two separate paragraphs. Declaring that he had sold the parcel devised to William H. Giddings, he gave him, therefore, the proceeds — “five thousand dollars ” — instead. Declaring that he had sold one of the parcels devised to George W. Giddings, he simply revoked “ that portion of said will.” Is there any reason why such a sharp discrimination should be made, as probable as that by such revocation, independent of the asserted fact of sale, he would accomplish substantial equality between his sons ? It seems to us there is not, and that we ought to hold the revocation to be valid, as being intentional, not induced by mistake, and unconditional.

This leads to the remaining question, as to what disposition should be made of this property. In behalf of the heirs at law, it is claimed that by the settled law of this State, (different, it is admitted, from that of most jurisdictions at the present time,) it becomes intestate. The case of Remington v. American Bible Society et al., 44 Conn., 512, is relied upon in support of this contention. In that case it was indeed held that a lapsed devise of real estate went to the heirs at law, upon the ground that, quoting Greene v. Dennis, 6 Conn., 304, Hosmer, J.: “ Wills must be construed by the intent of the devisor at the time of malting them. Of consequence, when property is given to a person incapable of taking, and there is a general devise of the residue, so far as respects the estate specifically devised at the time of the will’s being made, there is an intentional disposition, and it never was designed that it should fall into the residuum. The law respecting the bequest of personal estate is different, but as to the realty the decisions have been uniform and unquestioned.”

Without stopping to inquire whether there is any distinction in principle, on the ground stated, between devises of realty and bequests of personal property, or whether we should now reach the same conclusion if the question were now a new one in this jurisdiction, it is very evident that the case itself has no relevancy to the present query. Neither the rule nor the reason of it applies. Here is neither a void nor a lapsed devise. The devise was valid. It did not fail to vest, either first, in consequence of the death of the devisee before the death of the testator, or second, because notwithstanding the devisee survived the testator, he died before his interest could be said to have vested under the will. Hence there was no lapse. Schouler on Executors and Administrators, § 467. But as we have just held, it was revoked by the testator in his codicil, which in terms confirmed the will. Now “ the effect of a codicil which in terms ratifies, confirms, and republishes a will, is to give the original will the same force as if it had been re-written, re-executed, and republished at the date of the codicil. From a will and its several codicils, like a statute with its later amendments, the maker’s full intention is to be gathered.” Schouler on Executors and Administrators, § 82. “ It is a clear principle of the English and American law, that all codicils, however numerous, are to be regarded as parts of the will, and all, together with the will, are to be construed as one instrument. * * * It has often been held, that a codicil may operate as a republication of a former will; which, in effect, it always is, if it recognizes the existence of such an instrument.” Redfield on Wills, Vol. I., 288.

It would seem to follow from the above that the will should now be read as if the devise in question having been revoked, was never included in the will, now speaking from the date of the codicil. But if a direct authority to this effect is desirable, it may be found in Harris v. Davis, 1 Collyer’s Reports, 416. In that case the testator bequeathed the rest of his personal estate, and certain freehold and leasehold estates in equal shares, to L, M, N, O and P. In a subsequent part of his will, he bequeathed to H one half of the legacy named to each of the other legatees; that is to say, one half of what his brother M ought to receive. By a codicil the testator declared as follows: “I revoke all that part written in my former will, which leaves a legacy to H written in my will on the thirty-second and thirty-third lines.” It was held that by force of this revocation the will was to be read as if the gift to H were not in it; consequently that such revocation enured to the benefit of the other devisees and legatees. During the argument the Vice-Chancellor observed that the language of the codicil as to the revocation, of the legacy to S, seemed to amount to a direction by the testator that his will should be read as if all that related to that legacy were struck out with a pencil. His lordship asked Mr. Simpkinson if he was aware of an authority upon that species of revocation. Mr. Simpkinson, amicus curice, mentioned a case. In the opinion afterwards delivered, his lordship adhered to the view thus expressed.

The Superior Court is advised:—

First. The devise mentioned in section seven of the will, to George W. Giddings, was revoked by the codicil.

Second. Said real estate referred to in said devise, by said revocation, becomes part of the residuum of the testator’s estate.

In this opinion the other judges concurred.