In Re Venable's Will

37 S.E. 465, 127 N.C. 344, 1900 N.C. LEXIS 81

• Court: Supreme Court of North Carolina
• Decided: December 19, 1900
• Status: Published

Opinion

EaiRCLOth, O. J.

On August 29, 1891, Haywood Vena-•ble executed what purports to be his holograph will, found among his valuable papers, after his death. On March 15, 1899, he executed another will a few days before his death, which was probated and duly recorded on March 24, 1899.

S. L. Venable, one of the devisees in the holograph will, of-ffered the same for probate and recordation on May 18, 1899. An issue of devisavit vel non as to the holograph will was framed and submitted to a jury at Spring Term, 1900, of the Superior Court, whose verdict was against the pro-pounder of the said will, and the judgment of the court was that said holograph paper was no part of the last, will and testament, of Haywood Venable, all devisees, legatees, and heirs of the testator having come in as cavéators. Pro-pounder appealed.

We will designate the holograph paper as the first will, and the once recorded; as the second will. The question submitted to this Court is, whether the second will revokes the first, or whether, taken together, they constitute the last will of Haywood Venable. We are not aware that this issue has ever been before this Court, and we must, therefore, rely upon our own reasoning and such outside authorities as we can find. Each paper starts off by declaring this to be “my last will and testament,” and neither has a residuary clause. T.he first will declares all other wills void. The second has no express words of revocation. The second disposes of some property not mentioned or referred to in the first will. After the verdict was entered, the propounder moved the Court for judgment non obstante veredicto in favor of the first will, except as to provisions therein altered by the second will. This presents the whole question. During the trial' the caveators were allowed to introduce parol evidence re-•eiting the statements and declarations of the testator con cerning bis will. The admission of tbis evidence wa.s error. '‘Parol evidence of the revocation of a will was held to be inadmissible.” Jackson v. Kniffin, 2 Johns., 31; Smith, v. Fenner, 1 Gall., 170, Fed. Cas. No. 13,046; Pritch. Wills, sec. 248. These are considered leading cases. The argument made was, that parol evidence is admissible to' relieve latent ambiguities. The argument is correct, but it is a misapplication of the principle. We are not construing the meaning of these papers, but simply whether one revokes the-other, without regard to the meaning of either, even if there was any ambiguity in them. Looking at these instruments,' we can see no ambiguity in either. Each one names the-devisee and legatee, and each sufficiently describes the property devised. In construeing wills the intention of the testator must be ascertained from the face of the will when there is no latent ambiguity, and the intent to revoke one instrument by another is to be gathered in the same, way. By revocation is meant the destruction of the operative force of the will, either in part or entirely, by some extrinsic act in regard to it, or by making and publishing a later instrument in the nature of a will animo revocandi. 29 Am. and Eng. Enc. Law, 266; White v. Casten, 46 N. C., 197. Some courts have held that revocation is accomplished by simply disposing of an estate in an inconsistent manner. Schouler,, Wills, sec. 406. But, “on the other hand, the later will, though well executed, does not revoke the earlier one, as such, and without express words of revocation, except by being inconsistent with it; and by the extent of such inconsistency must be measured the extent of the revocation. To operate a total revocation in such a case, the two dispositions must be so plainly inconsistent as to be incapable of standing together. Only a revocation pro tanto results where the effect is that of partial inconsistency. It is like- making a will and then adding a codicil; tbe final disposition reading by tbe light of botb instruments together as a corrected whole.” Schouler, Wills (2d Ed.), sec. 407; Pritch., Wills, sec. 248. The manner of revoking wills is discussed in various ways in Pritch., Wills, chap. 2, Art. I, secs. 243-263, and supports the principle we have above stated. The appointment or non-appointment of new executors, and the usual expression, “my last will and testament,” have little bearing on the issue. 1 Williams, Ex’rs, 164. Our opinion is that the first and last wills together constitute the will of the testator, and his estate must be administered accordingly. There is no express revocation, which is the usual and natural way of showing the intention. There is nothing more than partial inconsistency, and nothing is disclosed on the face of the last will to indicate a purpose to destroy the operation of the first will entirely. It may be that we have missed the testator’s intention. If so-, it was his misfortune not to have expressed it in direct terms, so that it could be understood. All we can do is to attempt to arrive at his intention according to the established rules of construction. There was error.

Reversed.