Timberlake v. State-Planters Bank of Commerce & Trusts

115 S.E.2d 39, 201 Va. 950, 1960 Va. LEXIS 182

• Court: Supreme Court of Virginia
• Decided: June 13, 1960
• Docket: Record 5085
• Status: Published

Opinions

Buchanan, J.,

delivered the opinion of the court.

The question for decision in this case is whether a will duly executed and in existence when the testatrix died had been revoked by a subsequent will, also duly executed, which contained a revocation clause but which had been destroyed and was not in existence at the death of the testatrix. The answer is in the proper interpretation of § 64-59 of the Code,¹ considered in connection with § 64-60.²

The testatrix, Kate Miller Levering, made two wills, both executed and attested in accordance with statute, § 64-51, and left them both in the custody of the Trust Department of a Richmond bank, which was named as executor in both. The first will was dated October 29, 1954. The second was dated January 31, 1955, and in the first clause thereof stated that the testatrix makes “this my last Will and Testament, hereby expressly revolting any and all wills and/or codicils by me at any time heretofore made.”

Afterwards, on November 20 or 21, 1956, the testatrix went to the bank and made request to withdraw the 1955 will, giving as her reason that she wanted to make some changes in it and expected to do so by a new will rather than by a codicil. This 1955 will was accordingly delivered to her and was never later found. It is consequently presumed that it was destroyed by her with intent to revoke it. Tate v. Wren, 185 Va. 773, 784, 40 S. E. 2d 188, 193. An unsigned carbon copy of it was preserved by the bank and exhibited in evidence.

After the death of the testatrix, which occurred on November 1, 1958, the 1954 will was presented to the chancery court and offered for probate by the beneficiaries and the executor named therein, the parties interested were convened and after hearing the evidence the court held, for reasons stated in a written opinion, that the 1954 will was the true last will and testament of Kate Miller Levering, and accordingly ordered it probated and recorded as such. From this order the appellants, heirs at law of the deceased, have appealed and contend that the 1954 will was revoked by the 1955 will and that the deceased died intestate. The holding of the chancery court was based on the proposition that a will is ambulatory, speaks only at the death of the maker, and the 1955 will having been destroyed in the lifetime of the testatrix, it never had the effect of revoking the 1954 will. The appellants contend that the revocation clause in the 1955 will became effective immediately upon the execution of that will, was not affected by the destruction of it, and hence the 1954 will was without force or effect.

It will be observed that the statute, § 64-59, provides that a will may be revoked (§ 64-58 declaring revocation by marriage was repealed by Acts 1956, ch. 65) only (1) by a subsequent will or codicil, or (2) by some writing declaring an intention to revoke the same executed as a will is required to be executed, or (3) by mutilating or destroying it with the intent to revoke it.

This statute first appeared in the Code of 1849 as § 8 of Chapter 122, Title 33, in the identical words of the present statute, but its prototype has been in the statute laws almost since the birth of the nation. Section 64-60 appeared as § 9 in Chapter 122 of the 1849 Code.

Bates v. Holman, 13 Va. (3 Hen. & Munf.) 502, was decided first in 1808 and on a rehearing in 1809. At that time § 3 of Chapter 92, 1 Rev. Code 1803, was in effect, providing that no devise of land “shall be revocable but by the Testator’s destroying, cancelling, or obliterating the same, or causing it to be done in his presence, or by a subsequent will, codicil, or declaration in writing made as aforesaid.”

In the case named the testator had made a will in 1799 and then in 1803 made another which he signed and under his signature made and signed a postscript stating “I revoke all other wills heretofore made by me.” He later cut off his signature to the 18'03 will but. left the postscript as written and signed. The question was whether the 1799 will was thereby revoked. By a court divided 3 to 2 it was held, opinion by Judge Tucker, that the postscript was separately signed by the testator “as an express statutory revocation of all former wills made by him, utterly independent of, and unconnected with, his second will; and by the maker left in full force, at the time of cancelling that second will, and remaining in full force at the time of his death.”

Judges Roane and Lyons dissented. The former contended that the postscript was undoubtedly a part of the will and fell with it. He said:

“If this postscript had been contained in the body of the will, and there had been only one signature, it is evident that the cancelling the last will would clear the way for the first, which would consequently be established. ... As to such a clause of revocation, IT also is hable to be revoked; and, being revoked, before the death of the testator, is as if it had never existed. ... I consider this postscript, therefore, as not an independent declaratory act of revocation, . . . but as predicated on the will then made, and a part thereof, and liable to stand or fall by that will’s being cancelled or suffered to take effect....”

Judge Lyons agreed that if the postscript were still in force “as an independent act of revocation, the will of 1799 was destroyed, and was not a subsisting will;” but he concluded, “I cannot have a scintilla of doubt, but that the testator died leaving as his last will the paper [the 1799 will] which has been established as such by the judgment of the District Court.”

There seems to have been no disagreement among the five judges that if the postscript was part of the canceled 1803 will, it fell with that will and would not have been effective to revoke the 1799 will.

In Barksdale v. Barksdale, 39 Va. (12 Leigh) 535, decided in 1842, the question was whether a will of real and personal property duly executed in 1838 was revoked by a writing dated in 1839, intended to be a will but having only one witness and hence invalid. In its opening sentence declaring the instrument to be the maker’s will were the words “revoking all other wills” previously made. It was held that the revoking clause could not be abstracted from the will and made to serve as a declaration of revocation under the statute, but that “the invalidity of the instrument, which defeats the new disposition of his property, must also defeat the revocation of the former instrument.”

The statute referred to was the revised act of 1819, 1 Rev. Code, Ch. 104, § 9, p. 377, in these words: “No will in writing, or any devise therein, of chattels, shall be revoked by a subsequent will, codicil, or declaration, unless the same be in writing.”

Judge Baldwin, for a unanimous court, said:

“There are two modes of written revocation contemplated by the law just quoted, one by a will or codicil in writing, the other by a declaration in writing. For the sake of distinction, the first may be called a testamentary revocation, and the last a declaratory revocation. . . . The distinction between the two modes of revocation is not formal, but essential. In the testamentary revocation, the testator contemplates a new disposition of his property, and the revocation may be implied from inconsistency ... or it may be express, in order that the testator may do his new testamentary work without being in any wise fettered by the contents of his former will. The declaratory revocation, on the other hand, is always express, . . . and is in contemplation by the testator of that disposition of his property made by the law governing in cases of intestacy.

“In every testamentary revocation, the testator always acts upon the supposition that his whole purpose will be accomplished, that his entire testamentary act will be effectual, as well in regard to the new disposition of the subject, as the revocation of that which he had made by the former instrument; and his revocation is in fact part and parcel of his new testamentary action. . . . nor can I conceive, when he makes a new disposition of his property, and eodem flatu a revocation of a former disposition of it, how he can do so with any other expectation than that both will share the same fate. . . .” He further said: “Besides, no man, I should think, ever made provision by last will and testament for dying intestate. If such had been the testator’s design, he would have torn up the will of 1838 or thrown it into the fire, or if out of his possession and control, would have simply executed a naked instrument of revocation.”

Rudisill v. Rodes, 70 Va. (29 Gratt.) 147, relied on by the appellants as controlling in the present case, did not cite Barksdale or discuss the question of revocation, but dealt with the question of revival. There Rudisill made three wills, one each in 1868, 1871 and 1872. The second and third contained clauses revoking all former wills. He destroyed the third will with intent to revoke it, leaving the other two uncancelled. The court said the question was whether by the destruction of the third will the second was revived, and that the solution depended on § 9, Ch. 118' of the Code of 1873, which was in the identical language of present § 64-60, supra. Revocation seems to have been assumed or conceded. That the court did not have that question in mind appears from the statement in the opinion that it was not aware that § 9, the revival section with which it was dealing, had ever been construed by this court, and that there was no reported case about it. It was held, however, that there was no error in the judgment of the circuit court that the 1871 will had been revoked by the 1872 will, was not revived by the destruction of the latter, and therefore was not entitled to probate.

In Bell v. Timmins, 190 Va. 648, 58 S. E. 2d 55, the chancery court probated the holographic will of the testatrix, dated in 1935, after deleting interlineations made- by a Miss O’Brien. In refusing an appeal we adopted and published the opinion of the chancellor as the opinion of this court. In that case Miss O’Brien testified that there was in existence a subsequent will, holographic and signed, which started out with a revocation clause, followed by a disposition of identical purport and effect as the will which was probated. The court was asked by the contestant “to rip this introductory clause of the supposed subsequent will out of its setting, and use it to cancel this 1935 will; but without going further and undertaking to set up, here or elsewhere, the whole of the subsequent will.” In rejecting this request the court applied the doctrine of dependent relative revocation, which it explained, and then stated:

“. . . The law takes the view that if the testator is not able to carry out his whole testamentary intent in making the new will, or in malting changes in the old one, then it is to be presumed that he prefers his old will to intestacy; that the revocation was conditioned upon the new testamentary disposition being effective.”

The court added that the doctrine is nowhere more clearly recognized than in Barksdale v. Barksdale, supra, which is quoted from at length in the opinion.

In Poindexter v. Jones, 200 Va. 372, 106 S. E. 2d 144, the testatrix had made two holographic wills, one dated in 1938 and the other in 1939. Later she made two other holographic wills, one dated in 1947 and the other in 1950, which impliedly revoked the 1938 and 1939 wills but which she subsequently canceled with intent to revoke by tearing off her signature. The question was whether the 1938 and 1939 wills were revoked by the 1947 and 1950 wills when either or both of the latter were executed. Neither of the latter wills contained a revoking clause or declared an intent to revoke the earlier wills, but they were wholly inconsistent with the earlier wills and if unrevoked would have supplanted them.

There, as here, the heirs of the testatrix relied upon the Rudisill case, supra, to support their contention that the 1938 and 1939 wills were immediately revoked on the execution of the subsequent wills and that the testatrix died intestate. But we referred to the fact that in the Rudisill case the court dealt with the revival statute (§ 64-60), did not refer to the Barksdale case, “of persuasive effect,” and did not comment on what is now § 64-59, the revocation statute, which was equally pertinent “because unless the subsequent will revoked the former when executed, the issue of whether or not there is a revival is never reached.”

We then proceeded, after discussing the Barksdale case, to hold that where there are two inconsistent wills and one has been destroyed by the maker, “no conflict arises or can arise between the two instruments, for wills are ambulatory and operate only upon and by reason of death.” Consequently, we said, the 1938 and 1939 wills must be probated because they were not revoked by the 1947 and 1950 wills “as there can, in fact, be no conflict between these ambulatory instruments—these wills—until death, and as the latter were destroyed animus revocandi, they thus never constituted wills under § 64-59, and never revoked the 1938 and 1939 wills.” We expressly overruled so much of the opinion in Clark v. Hugo, 130 Va. 99, 107 S. E. 730, as was in conflict with this holding.

Under § 64-59, so far as we are presently concerned, a will is revoked (1) by a subsequent will or codicil, or (2) by some writing declaring an intention to revoke, executed in the same manner as a will. The first way is a testamentary revocation, the second is a declaratory revocation. The distinction is not formal but essential. The testamentary revocation is made to clear the way for a new disposition of testator’s property; the declaratory revocation does not dispose of property but renders the maker intestate. The testamentary revocation would not occur unless the testator intended to change his previous will. The testamentary revocation is thus part and parcel of his new testamentary action. When he destroys the revoking will, how can he do so with any other expectation or belief than that he is destroying it all, the revoking provision along with the disposing provisions, both imbedded in the same document? Barksdale v. Barksdale, supra.

Here we know that Mrs. Levering did not intend to die intestate. The evidence shows it and the chancellor found it to be true. At the bank she asked only for the 1955 will and left the 1954 will intact in the bank where she had placed it. She intended to make some changes in the 1955 will. Instead of doing so she destroyed that will. Then how could we know that she then meant or thought that the revocation would remain effective although she knew the dispositions of her property in the instrument of which it was a part would not be?

In Poindexter we spoke of the paradoxical situation of a testator’s dying intestate with an intact will in his hand. As the chancellor said in his opinion in the present case, this testatrix left her will in a better and safer place than if she had died with it in her hand. She died “with a valid, unblemished will in the custody of the executor named therein, upon whose integrity and good faith to propound that will for probate and to carry out its testamentary provisions she had a right to rely.”

A will is an ambulatory instrument, not intended or allowed to take effect until the death of the maker. It may be changed during life as often as the mind and purpose of the testator change. While he lives his written will has no life or force, and is not operative or effective for any purpose. 95 C.J.S., Wills, § 310, p. 110; Spinks v. Rice, 187 Va. 730, 47 S. E. 2d 424. If a testator elects to use the first method provided by the statute and puts a revocation provision in a will which he knows he may change at pleasure and which he knows will not be effective until he dies, it would seem to be wholly illogical to say that if he afterwards destroyed the will with intent to revoke it, he did not thereby destroy all of it, but that, regardless of his intention, the revocation clause, although without physical form or existence, remained alive and vital with power to destroy all the wills he had ever written. Under such a rule the most solemn and deliberate will of a testator may be refused probate on the testimony of a witness, as in Bell v. Timmins, supra, that he saw the testator write and sign a later will which revoked the will now proffered.

We specifically held in Barksdale that a revoking clause in a will is a part and parcel of the will itself, without independent and immediate life or power, and that it survives or perishes with the will. We specifically held in Po'mdexter that a will which revokes a prior will by being wholly inconsistent with it, does not effect such revocation when executed but may do so only if it subsists when the testator dies. We are unwilling now to turn from the reasoning or the result of those two cases.

Our conclusion is that Barksdale and Poindexter announced the safer and better rule, a rule that keeps in step with the historic character and function of wills and is consonant with the language of the statute; that is, when a revocation of a prior will is made under the statute, § ¿4-59, by a subsequent will, the revocation clause speaks when the will speaks, not at the time of the execution of the will, but at the death of the testator; and if in the testator’s lifetime he destroys or cancels the revoking will with the intent to revoke it, the revocation provision falls with the will and is not effective to revoke the prior will. So far as Rudisill v. Rodes, supra, 70 Va. (29 Gratt.) 147, is in conflict with this conclusion, it is overruled.

The judgment of the court below establishing and probating the 1954 will is

Affirmed.

Spratley and I’Anson, JJ., dissenting.

1 “§ 64-59. Revocation of wills generally.—No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, or by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling or destroying the same, or the signature thereto, with the intent to revoke.”

2 “§ 64-60. Revival of wills after revocation.—No will or codicil, or any part thereof, which shall be in any manner revoked, shall, after being revoked, be revived otherwise than by the re-execution thereof, or by a codicil executed in the manner hereinbefore required, and then only to the extent to which an intention to revive the same is shown.”