Wallis v. Wallis

Massachusetts Supreme Judicial Court

Wallis v. Wallis

114 Mass. 510

CourtMassachusetts Supreme Judicial Court

DecidedJanuary 15, 1874

StatusPublished

Cited by24 cases

This text of 114 Mass. 510 (Wallis v. Wallis) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wallis v. Wallis, 114 Mass. 510 (Mass. 1874).

Pincite

Opinion

Gray, C. J.

By our law, no will can be revoked by any subsequent instrument, other than a “ will, codicil or writing, signed, attested and subscribed in the manner provided for making a will.” Gen. Sts. c. 92, § 11. And when an instrument of revocation is in existence and capable of being propounded for probate, its validity should be tried by a direct proceeding instituted for the purpose in the Probate Court. Laughton v. Atkins, 1 Pick. 535. The first issue should not therefore be submitted to the jury, in the form suggested by the contestants, upon this appeal from the probate of the will alleged to be revoked.

But when a testamentary instrument is lost or destroyed, it cannot be admitted to probate without clear and satisfactory proof of its whole contents. Davis v. Sigourney, 8 Met. 487. If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be. obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will, in accordance with the practice established in the English Ecclesiastical Courts before the Declaration of Independence, and adopted by the courts exercising similar jurisdiction in New York and New Jersey. Helyar v. Helyar, 1 Lee, 472. Nelson v. McGiffert, 3 Barb. Ch. 158, 164. Day v. Day, 2 Green Ch. 549. The first issue should therefore be amended by adding an allegation on the part of the contestants that the instrument of revocation was lost or destroyed and its contents cannot be proved so that it can be propounded for probate.

If such an instrument existed and has been lost or destroyed, its effect as a revocation does not depend upon the question whether its loss or destruction was the result of fraud or of accident. The second issue should therefore be rejected as involving an immaterial allegation.

Ordered accordingly.

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Gray, C. J.

By our law, no will can be revoked by any subsequent instrument, other than a “ will, codicil or writing, signed, attested and subscribed in the manner provided for making a will.” Gen. Sts. c. 92, § 11. And when an instrument of revocation is in existence and capable of being propounded for probate, its validity should be tried by a direct proceeding instituted for the purpose in the Probate Court. Laughton v. Atkins, 1 Pick. 535. The first issue should not therefore be submitted to the jury, in the form suggested by the contestants, upon this appeal from the probate of the will alleged to be revoked.

But when a testamentary instrument is lost or destroyed, it cannot be admitted to probate without clear and satisfactory proof of its whole contents. Davis v. Sigourney, 8 Met. 487. If it can be proved that a later will was duly executed, attested and subscribed, and that it contained a clause expressly revoking all former wills, but evidence of the rest of its contents cannot be. obtained, it is nevertheless a good revocation; and it can be made available only by allowing it to be set up in opposition to the probate of the earlier will, in accordance with the practice established in the English Ecclesiastical Courts before the Declaration of Independence, and adopted by the courts exercising similar jurisdiction in New York and New Jersey. Helyar v. Helyar, 1 Lee, 472. Nelson v. McGiffert, 3 Barb. Ch. 158, 164. Day v. Day, 2 Green Ch. 549. The first issue should therefore be amended by adding an allegation on the part of the contestants that the instrument of revocation was lost or destroyed and its contents cannot be proved so that it can be propounded for probate.

If such an instrument existed and has been lost or destroyed, its effect as a revocation does not depend upon the question whether its loss or destruction was the result of fraud or of accident. The second issue should therefore be rejected as involving an immaterial allegation.

Ordered accordingly.

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Bluebook (online)

114 Mass. 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallis-v-wallis-mass-1874.

Opinion

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