In re Ely's Estate

146 P. 89, 74 Or. 561, 1915 Ore. LEXIS 360

• Court: Oregon Supreme Court
• Decided: February 9, 1915
• Status: Published

Opinion

Mr. Justice Harris

delivered the opinion of the court.

For the sake of brevity the instrument dated October 24, 1908, will be referred to as the first will, and the document bearing date of July 30, 1912, will be referred to as the second will. It will be observed that the second will contains the following: “Ho make, publish and declare this my last will and testament, ’ ’ and “I hereby nominate and appoint * * the executor of this my last will and testament.” The controversy between the litigating parties gives especial prominence, however, to the following language employed by the second will: “And hereby revoke all former wills by me made.”

The appellants contend that the revocation clause appearing in the second will is the result of inadvertence and mistake, and that the testator intended and believed that the first will continued as a subsisting instrument, but modified and limited, however, by the second will. In the view of appellants the second will is to be regarded as a codicil, rather than as a substantive will, and they therefore urge that the two documents should be received and construed as one will, with the revocation clause eliminated.

1. For the purpose of showing that the revocation clause appears in the second will because of a mistake, the appellants, over objection, offered parol evidence of oral declarations made by the testator both before and after the execution of the second will. These oral declarations were, in substance, that he had made a will in Oregon; that he was sorry that he had made that will; that he had not done right by Clara; that he wanted to let that will stand just as it was, but that he was going to make another will of the property in Gardena ; that he was going to do the right thing by Clara in the latter will; that he had always promised her a home, and he was going to give her a home; that he had changed his will, and had “willed his wife $3,000 outright”; that the Oregon will “would stand.”

George D. Ely at the time of his death was about 53 years of age. He had a fairly good education, read the newspapers, and kept himself posted, had been a farmer, had conducted a store about ten years, had been a notary public, and, as such, had transacted such business as is usually done by a notary public.

A printed form was used in preparing the second will. The revocation clause is printed, and so are the words “my last will and testament.” The blanks were filled in by another person, but the testator dietated all that was written in,' and during part, if not all, of the time “looked over” the will while the writing was being done. It is the uncontradicted evidence that after the paper was prepared, and before he signed it, the document, in its entirety, was read over to him. The testator was in possession of his mental faculties at the time of making the will, and gave to the transaction the care and attention usual in like cases; and in view of his business experience, together with the fact that the instrument was read over to him, it is far more reasonable to conclude that the testator knew that the revocation clause appeared in the will.

The facts in this case are not like Goods of Moore (1892), L. R. P. D. 378, where the printed words containing the clause of revocation were not read; nor analogous to Goods of Boehm (1891), L. R. P. D. 247, where the draft was not read over, but an epitome was; or similar to Goods of Oswald, L. E. 3 P. & D. 162, where the revocation clause was not read by or to the person who signed. The case in hand is quite different from Whitney v. Hanington, 36 Colo. 407 (85 Pac. 84), where there was no revocation clause.

2. The second will is direct and positive in its terms, and is without ambiguity either patent or latent. The general rule is that extrinsic evidence is not admissible to prove and correct an alleged mistake of the testator in the will: 40 Cyc. 1436; 17 Cyc. 636. While it is true that there are cases holding that a revocatory clause is not always imperative, nevertheless an examination of those cases will in most, if not all, instances, disclose differentiating features.

3. It is true that the second will does not by its terms dispose of all the property owned by the testator; but “a will may be revoked by a subsequent will containing an express clause of revocation, although the will containing such clause of revocation makes no disposition of the property embraced in the former will; and, where such is the case, it is immaterial whether or not the later will is inconsistent with the earlier”: 40 Cyc. 1174. To eliminate the revocatory clause would be to take from the will that which the testator must have known was there, and therefore is to do that which is the very antithesis of his express direction.

4. The court cannot make for the testator a new and different will; nor can the will in this instance be varied by the parol declarations of the testator: Dunham v. Averill, 45 Conn. 61 (29 Am. Rep. 642); Kinney v. Kinney, 34 Mich. 250; Zimmerman v. Hafer, 81 Md. 347 (32 Atl. 316); Walston’s Lessee v. White, 5 Md. 297; Hawman v. Thomas, 44 Md. 30; Defreese v. Lake, 108 Mich. 415 (67 N. W. 505, 63 Am. St. Rep. 584, 32 L. R. A. 744); Fry v. Fry, 125 Iowa, 424 (101 N. W. 144); Napier v. Little, 137 Ga. 242 (73 S. E. 3, Ann. Cas. 1913A, 1013, 38 L. R. A. (N. S.) 91).

The decree is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Bean concur.