SARAH LAUGHTON, APPELLANT, &c. vs. ATKINS

This was an appeal from a decree of the judge of probate approving and allowing an instrument, bearing date the 19th of June 1819, as the last will and testament of Sarah Badger, in which the appellee was constituted executor and residuary devisee and legatee. The appellant was an heir at law.

Several reasons of appeal were filed in the probate office. The fourth was, that on the 26th of December, 1821, the testatrix, by an instrument under her hand and seal and duly executed by her, cancelled and revoked the instrument approved as her last will and testament.

The appellee's answer to this was, that the instrument of 1821 purported to contain a disposition of all the estate, real and personal, of Sarah Badger, and by express words a revocation

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of all former wills; that it had never been approved and allowed as her last will, but on the contrary, that it had been offered for probate at a probate court, when it was ordered that proper notice should be given to all persons interested to appear and show cause, &c., and notice was accordingly given among others to the appellant and appellee; that the appellee appeared, and, in consequence of his interest in the instrument of 1819, was permitted to contest the validity of the one then offered for probate, and it was adjudged, that it was not made freely and voluntary, but was procured by undue influence and persuasions and false representations of the conduct of the appellee, and should be taken to be null and void.

The appellant was not served with a particular notice, when the instrument of 1821 was offered for probate, but a general notice, in the usual manner, to all persons interested, was published in the newspapers.

The counsel for the appellant being called upon by the Court to begin,

Hubbard contended that the instrument of 1821, although not proved as a will, yet having on the face of it all the requisites of a will, might be given in evidence as a revocation. The statute does not require that such an instrument should be proved as a will. In Hitchins v. Bassett, 3 Mod. 203, the jury found that there was a second will, of the contents of which they were ignorant, and the court held it not to be a revocation, because it might be consistent with the first will. Harwood v. Goodright, Cowp. 90, reversing the decision in the Court of Common Pleas, as reported in 3 Wils. 497, is to the same effect. But if the second had been inconsistent, it would have been a revocation. Powell on Devises, 540. The jury in the cases cited might have found that the second will was inconsistent, without finding it a subsisting valid will; for if such a will were found, the question of a mere revocation could not have arisen If in the present case the second will had not been found, the making of it might be shown, in order to impeach the will in favor of Atkins, in a suit brought by him; for the statute does not require that an instrument, to be a revocation, shall be proved, but only that it shall be executed in a particular

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manner. All the cases that say, that a will not capable of operating as a will shall not operate as a revocation, are where there was some intrinsic defect, as the want of a sufficient number of witnesses. There might be circumstances which would render it impossible to prove an instrument as a will; for instance, all the witnesses might be devisees, and yet it would be a revocation. A devise to a person incapable of taking will be a revocation. Ellis v. Smith, 1 Ves. jun. 17; Roper v. Radcliffe, 10 Mod. 233; S. C. 1 Bro. P. C. 450; Beard v. Beard, 3 Atk. 72; Vin. Abr. Devise, O, pl. 4. Imperfect conveyances are sufficient to revoke a will. 1 Roll. Abr. 615; Powell, 607; Vin. Abr. Devise, P, pl. 6 and 7; Shove v. Pincke, 5 D. & E. 124 The Court will not take land away from an heir in order to give it to a person that the testatrix intended should not have it. The destroying a second will does not set up the first. Moore v. Moore, 1 Phillim. 412.

The heirs are not concluded by the decree produced, as they were not parties to that suit. If they had appeared, it would have been for the purpose of opposing the second will. They had the same object there as Atkins, and the decree was not against them, but in their favor, and it cannot affect their rights, even if the Court should think that notice through the newspapers was sufficient. The heirs might think there was no sufficient ground for opposing the probate of the second will, but they know that the will now offered for probate was not the last will of the testatrix, for they find a subsequent one which shows it was not her intention to give the property to Atkins. Some persons may be used as witnesses now who could not be in the former case. The appellant was not a party nor privy to that suit, and the judgment was only that the subsequent instrument was not a will. We do not now offer it as such, but for a different purpose, viz. as a revocation. Duchess of Kingston's case, 11 Harg. St. Tr. 198, and 20 Howell's St. Tr. 538.

Webster and J. T. Austin, for the appellee. The second instrument contained a general disposition of the property of the testatrix. The clause of revocation was merely assistant

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to this disposition. The testatrix had no intention to die intestate. If the instrument, which was intended to be a will and not merely a revocation, cannot operate as a will, it appears abundantly from the cases which have been referred to, that it cannot take effect as a revocation. For many years after St. 32 Hen. 8, a revocation of a will in writing devising land might have been by parol. The statute of frauds provided that such a will should be revocable only by burning, &c., or by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same; and our own statute of 1783, c. 24, is in this respect substantially a copy of that statute. This instrument is not a will, nor is it a writing of the devisor, &c., under the other clause. It this paper proposed only to revoke the first will, although it is in the form of a will, the appellant might perhaps use it as evidence without proving it in the probate court; but as the instrument purports a disposition of property, it must be proved as a will and not used as a revocation merely; for the intention of the testatrix shall not be taken by halves. It is on this principle provided by our statute, that if a will purports to dispose of both real and personal estate, and it is bad for the real estate, it shall not operate upon the personal; for if the whole intent cannot be executed, it is better that the whole will should be void, than that a part only should be set up. The earliest case, which is Hoil v. Clark, 3 Mod. 218, determined in C. B. by two justices against one, is against us; but the case of Eccleston v. Speke, determined the year after in K. B., reported in 3 Mod. 259, 1 Show. 89, Carth. 79, Comb. 156, and Holt, 222, and the case of Limbery v. Mason, Comyns, 451, establish the doctrine we contend for. If the law were otherwise, the consequence would be, that if the second will differed from the first only in some trifling bequest, the great purpose of both would be defeated. The same doctrine is recognized in Onions v. Tyrer, 1 P. Wms. 343, where Lord Chancellor Cowper notices that in the case of Eccleston v. Speke the devises in both wills were to the same persons, but he says that if the devise in the second will had been "to a third person, it should never have let in the heir, in regard the meaning of the second will was, to give to the second devisee what it had taken from the first without any consideration

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had to the heir." In the nature of things it can make no difference; for otherwise every case would turn on the question of how much the two wills were unlike each other. There are various other cases in the English books, but it is unnecessary to refer to them, since they are discussed in Ex parte Ilchester, 7 Ves. jun. 348. It was there held that a second appointment of the testamentary guardian, which was invalid, was not a revocation of a former appointment. Lord Alvanley goes through the cases and concludes, that if a revocation is the leading object, it takes effect. The whole of his reasoning comes to this, that there is no such uniform proposition as that not any thing in the form of a will shall be a revocation, though not good as a will, for the instrument may be made solely for the purpose of revocation. In the case at bar the revocation was not the leading object of the testatrix, and how can the Court inquire how much of her object the mere revocation was? If it is said that the instrument might be proved as a will so far as to be a revocation, it is answered, that this Court cannot look upon a will as evidence, unless it appears under the seal of the probate court. A probate here differs in one respect from a probate in England. There, in questions relating to land, a will must be proved toties quoties; here, the probate is conclusive in such cases. In both countries the probate is conclusive against all the world in respect to personal property. Rex v. Netherseal, 4 D. & E. 260; Dublin v. Chadbourn, 16 Mass. Rep. 433. Our case is good if this instrument had never been rejected at the probate office; our position is, that the appellant must show that it was proved and allowed there. Osgood v. Breed, 12 Mass. Rep. 525. The case of Reid et ux. v. Borland, 14 Mass. Rep. 208, is decisive of the one before the Court. It is said on the other side, that a will imperfect on the face of it cannot be a revocation; we say that it cannot if it has an inherent defect, as is the case here. There is nothing on the face of this instrument to prevent its being proved, and why should that be set up as a revocation only which on its face appears to be a perfect will? This makes the case stronger against the appellant.

If the appellant was not a party or privy to the decree of the

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court of probate, she may now make application in that court to set up this instrument; but she must first make out as a matter of fact that she had no notice. That decision was in strictness of law adverse to her rights. If she would claim as an heir at law, she ought to have supported this instrument, if it was only a revocation. It is not necessary, however, that the decree should be adverse. If this instrument was set aside by her procurement, there is an end of the case; but if the decree was adverse, she was a party, and then there is an end of the case.

Prescott, in reply. The statute does not require that a will, in order to be a revocation, shall be a good effective will to pass property, for then there must be somebody capable of taking; it only requires that the will shall be well executed. The clause of revocation in the instrument under consideration is essential. It shows the intention of the testatrix, that, at any rate, Atkins should not take her property. The defect here was dehors the instrument; which failed as a will from the want of evidence to prove it. This would have been a revocation before the statute of 25 Geo. 2, c. 6, when, if the devisees refused a release, the heir might call them to prove a revocation. The intent that a devisee in a former will shall take is as clear, where the subsequent devisee cannot take on account of being a Papist, as where the second will is void from any other cause. Powell, 640, 641. The case Ex parte Ilchester is as much in favor of this instrument's being a revocation as against it. Lord Alvanley, in reasoning on the case of Onions v. Tyrer, goes on the ground that the intent of the testator was the same in both wills. Throughout the case Ex parte Ilchester, by perfect and complete will is meant one executed according to the statute. We offer this instrument as evidence, not as a will. If it cannot be received without a probate, it is as much as to say that an heir at law can never prove a revocation by an instrument purporting to be a will. [Putnam J. Suppose a testator to be blind and to say merely that he revokes a former will, and the scrivener puts into the instrument devises, could not the heir go into the probate office and prove it in part and disprove the rest?] That would be a novel case, but might not the heir, without going into the

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probate office, show the paper as a revocation and prove the clauses of devise to have been fraudulently inserted? It would strike every one as a strange proceeding to offer a revocation for probate. The case of Goodright v. Glazier, 4 Burr. 2512, which determines that a cancelling of a second will revives the first, is cited in Phillimore, and the decision is there doubted. By the civil law the first does not revive, unless there is something to show a republication. It is difficult to decide which rule is best, for either will cause hardships in particular cases; but this Court, sitting as a court of probate, will be governed by the rule of the civil law.

The former decree, to be binding, should be between the same parties and or precisely the same point; which was not the case here in either respect. The case of Reid et ux. v. Borland was determined without much investigation, and the second will there was defectively executed.

The opinion of the Court was afterwards delivered at the October term, in Essex, by

PARKER, C. J. [After stating the facts, he proceeded:] The appellant in the present case contends, that notwithstanding the decree disallowing the instrument of 1821 as a will, that instrument is good and valid for the purpose of revoking the former will, there being a clause of revocation therein, and that she as heir at law of Sarah Badger is not bound by that decree, but is entitled now to offer and prove to this Court the due execution and publication of said will, so far as respects the revoking clause therein, and thereby to avoid the instrument now offered for probate. Upon this question, the cause has been elaborately and learnedly argued, and after as much deliberation thereon as the pressing calls of this circuit would allow, we have come to a decision which we take the earliest opportunity to announce, as the circumstances of the estate probably require that the contested claims and rights should be ascertained as soon as possible.

When the question was first proposed, it struck us all as novel and singular, that an instrument once offered to be proved as a will, and disallowed as such by the court of final jurisdiction

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upon the subject, should be imagined to be capable of being used afterwards for any purpose whatever; the effect of such a decree seeming to be, to render the instrument entirely null and void; but the arguments we have heard, and the authorities cited, have satisfied us that the case was not so clear as we at first believed it, though upon a thorough examination of the arguments and authorities we are convinced our first impression was well founded. The case of Reid et ux. v. Borland, 14 Mass. 208, is a direct decision upon the question, and would justify us in going no further into the subject, if the circumstances under which that decision was made had admitted of a full investigation; but as the decision took place in the hurry of a circuit, and in a place where many authorities could not be obtained, we have thought fit to consider the question as open, and to reexamine it on principle, as well as authority, after the aid we have had from the argument in the present case. In the case above cited, a will made subsequently to that which was offered for probate, in which was a clause revoking all former wills, was tendered as a revocation of the first will; but it having been offered for probate, and rejected because not attested according to the statute, though otherwise it was perfect as a will, it was held that it could not operate as a revocation. This case embraces all the points which are raised in the case before us, and, among others, the conclusiveness of the decree upon the heirs; but for the reasons above mentioned, we have considered it as leaving open the subject for investigation.

It seems to be agreed in the argument, that the instrument relied upon as a revocation in this case must be such as is described in St. 1783, c. 24; in the 2d section of which it is enacted, that "no devise in writing of lands, tenements and hereditaments, or any clause thereof, shall be revocable otherways than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing or obliterating the same, by the testator himself, or in his presence, and by his direction and consent; but all devises and bequests of lands and tenements shall remain and continue in full force until the same be burnt, cancelled, torn or obliterated by the testator, or his direction, in manner aforesaid, or

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unless the same be altered by some other will or codicil, or other writing of the devisor, signed in the presence of three or more witnesses, declaring such alteration."

The 6th section enacts, "that no will in writing, concerning any goods chattels or personal estate, shall be repealed, nor shall any clause or bequest therein be altered or changed by any words or will, by word of mouth only, except the same be in the lifetime of the testator committed to writing and read to the testator, and allowed by him in the presence of three credible witnesses at the least."

An instrument, then, to have the effect of a revocation of a will which devises real estate before made, must be in itself either a will or codicil; or some other writing of the devisor, signed in the presence of three or more witnesses. If the instrument propounded as a revocation be in form a will, it must be perfect as such, and be subscribed and attested as is required by the statute. An instrument intended to be a will, but failing of its effect as such on account of some imperfection in its structure or for want of due execution, cannot be set up for the purpose of revoking a former will, for this substantial reason, that it cannot be known that the testator intended to revoke his will except for the purpose of substituting the other, and that it would be making the testator die without a will, though it was clearly his design not to do so. This principle has been settled by many decisions in the English courts of law and equity, their statute of frauds in relation to this subject being similar to ours.

In the case of Eccleston v. Speke, reported in Carthew, 79, and in several other books of reports, the Lady Speke had by her will in writing devised lands to the defendant, and afterwards made another will, by which she also devised the lands to the defendant. This latter will was signed by her in presence of three witnesses, but they did not attest it in her presence. It was held that it did not amount to a revocation of her former will; because, being intended for a will and failing as such, to give it operation as a revocation would be contrary to the intent of the statute. And it is there stated by the court, "that if the revocation is by will, it must be such a will so

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qualified as is provided by the section of the statute in relation to wills, to wit, signed and subscribed by the witnesses in presence of the testator. The testatrix never intended this writing to be a revocation, but by making it her last will; which it is not, because it is void."

In the case of Limbery v. Mason & Hyde, Comyns, 451, it was held, that if there be an intention to revoke by a new will, and the instrument made for that purpose cannot take effect as a will, on account of some defect in the execution, it cannot be a revocation, because it was not intended to revoke the old will until the new one should be complete. "Tunc prius testamentum rumpitur, cum posterius rile perfectum est." In Hyde v. Hyde, 3 Ch. 155, there is a similar decision.

The case of Onions v. Tyrer, reported in 2 Vern. 742, is still stronger. Tyrer, in 1707, made a will, duly attested, in which he disposed of his real estate. In 1711 he made another touching his real estate, with a clause of revocation of former wills; but this was not attested in his presence. It was resolved, that although there was an express clause in the latter will revoking the former, yet that, being void for the above cause, it would not amount to a revocation, it being intended to operate as a will, and not otherwise as an instrument of revocation. And the case of Eccleston v. Speke is cited in support of this decision. This case is the stronger, because there was a cancelling of the former will, but as that was for the purpose of setting up the second, which could not be done, the former will was revived in equity on the ground of accident.

The above cases have been supposed by the counsel in this case, as well as by counsel in subsequent cases in England, to have been determined on the fact, that the devises in the second will were substantially the same as in the first; but the position is laid down broadly as a principle, and Lord Cowper is reported to have said, in the case of Onions v. Tyrer, that it would have made no difference if the devise in the second will had been to a third person; and in a much later case, reported in 7 Ves. Jr. 348, the principle is adopted by the Lord Chancellor Eldon, and by Lord Alvanley and the master of the rolls, Sir William Grant, whom he had called to his assistance, without any restriction. They all concurred in the opinion,

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that an appointment of a guardian, duly made according to the statute, was not revoked by an instrument made for the purpose of appointing another guardian, but not executed according to the statute, although it was demonstrable that a revocation was intended; but it was intended in order that another guardian should be substituted. I should think this case was not accurately reported, so far as respects the reasoning of the judges, as that in some parts, particularly in Lord Alvanley's opinion, is inconsistent with the decision. Sir William Grant gives the true ground of the decision. He says, (p. 377,) "There can be no doubt that part of the intention was to revoke the appointment. But the question is, whether that was the substantive, direct object, or only as an incidental and necessary part of the ultimate object; and whether it would ever have been entertained except with reference to that." He says further, "Where there is nothing but the mere fact of a new devise, the intention to revoke can be considered only with reference to the new devise, and as the testator means to give effect to it, if the instrument is so made as to be incapable of operating, I cannot conceive how an instrument, inoperative to its direct purpose, can give effect to an intention of which I know nothing but by that purpose." We think it clearly settled by the cases which have been commented upon, that an instrument intended for a will, but inoperative as such on account of some defect in the instrument or in its execution, although it contain an express clause of revocation of former wills, cannot be used for the purpose of revoking only.

The cases cited against this position do not in reality militate with it. The principle they establish is, that a second will, inconsistent with the first, perfect in its form and execution, but incapable of operating as a will on account of some circumstance dehors the instrument, may nevertheless be set up as a revocation of the first.

The cases in 1 Roll. Abr. 615, under the head of what may be a revocation, are of this sort. A will perfect in its nature is made and properly executed, but is incapable of operating on account of some incapacity in the devisee to take; this nevertheless operates as a revocation of a former will, because

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all the requisitions of the statute are complied with, and it is inoperative only on account of some extrinsic circumstance. In these cases, however, it must be proved, not only that another will has been made, different from the former, but in what it differs, so that the court may know it is inconsistent; as in the case of Goodright v. Harwood, reported in 3 Wils. 497, and Cowp. 87. The cases of Roper v. Radcliffe, in 10 Mod. 233, and Beard v. Beard, 3 Atk. 72, are of similar import, there being no defect in the instruments, but an incapacity in the party for whose benefit they are made to take under them.

It must be confessed that it is not easy to perceive any reason for the distinction formed by these two classes of cases, as far as they relate to the intention of the testator, for in the latter, as well as former, he manifests an intent not to die intestate. Perhaps the true ground is, that in the former cases to allow a defective will to be set up as a revocation would contravene the statute, and in the latter it would not. But it is said, that the will set up as a revocation comes within the matter class of cases, it being duly executed and attested according to the statute, and being inoperative only from circumstances proved dehors the will. It is true the instrument is perfect in all its parts, and is accompanied with all the formalities prescribed by the statute; but it comes before us connected with a decree declaring that it is null and void in itself, so that it never had any legal force or being as a will; how, then, can it be treated as such for the important purpose of revoking a former will? If the principle deduced from the cases cited is true, that all we can see of a design to revoke is indicative of a purpose to substitute this for the one revoked, then, to give effect to the revocation, and to deny any effect to the dispositions of the will, would be to thwart the intentions of the testatrix. How can we know from the will itself, that she would not have preferred that the first will should stand, rather than that the heirs at law should enjoy the estate? It is obvious she meant no good to them in either of the wills. Besides, we are to look at the grounds of the decree setting this second will aside. They were fraudulent representations, undue influence, practice upon a weak and infirm mind. These were the causes

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which produced the second will, and to give effect to the second the first was revoked. These means were, then, as much applied to the revoking as to the disposing parts of the will. It would be impossible to separate them, without proof that she was a free disposing agent in one part of the will, and a mere dupe of interested persons in the other parts. While that decree stands, the whole will must be deemed to be a nullity in regard to all persons who are bound by it. If a person of sound mind had made a will, and afterwards, when of unsound, had been prevailed upon to make another, revoking the former, it could not be pretended that the latter should be set up as a revocation. There is certainly no difference in principle between such a case and the one at bar; for a will obtained by undue influence and practice is as much a nullity as one obtained from a person of insane memory.

And this brings us to the question, whether the heirs at law of the testatrix are to be considered parties or privies, so as to be concluded by the proceedings of the Supreme Court of Probate upon that will.

All persons interested in an estate of a person dying testate or intestate are bound by the proceedings in the probate office, as far as the judge has jurisdiction of the subject, if they had notice of the case which was to be acted on. It is admitted that general notice in the customary form was given of the intent to prove the will which has been decided upon. Heirs at law are the persons most interested in such questions; they are bound by the public notice, and no instance exists of their being allowed to object to the execution or the validity of a will which has been regularly proved in the due course of probate proceedings, they having had such notice. If the will which has been disallowed had been set up and allowed, no one can deny that the heirs at law would have been bound, and yet they would have been disinherited. This is not denied, but it is said, that, as they had no interest in setting up the will which has been disallowed, but on the contrary that their interest consisted in having it avoided, and that it was the revoking part only that they were interested to establish, that they would not

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have been permitted to insist upon that part of the will being proved, and the residue rejected, and therefore they ought now to avail themselves of it for that purpose. Admitting this to be true, it does not follow that they have the right to set up the will in part now, which has been rejected in toto, in order to give effect to the revoking clause only; for it remains unproved and disallowed, and before it can be allowed any force must be subjected to an original examination in the probate court, for it cannot be originally proved here; and that will is not now before us as a subject of proof. If, therefore, the appellant is not bound by the decree on account of the circumstances mentioned, it will follow that she must go before the probate court and prove the will there so far as respects the revocation; and there is no doubt that a will may be proved in part and disproved in part, as in the case of Billinghurst v. Vickers, 1 Phillimore 187, where part of a will was established and part rejected, and in 3 Atk. 72, where the will was held good as to the appointment of an executor, though the legacies were revoked. There will be, however, this difficulty to meet with there, that if the revocating clause could now be set up alone as the will of the testatrix, so it might when the case was under the consideration of the court before, or upon the appeal, and then, if, as heir, she was bound by the decree, having had legal notice, and being entitled to be heard, the decree will be a bar to the new proceeding; and, indeed, there seems to be no reason why the heir should not have appeared and prayed for establishing the will as a revoking will, while others were opposing it as to all the dispositions made in it. The attempt, however, would probably have failed; for the same evidence which showed the will was unduly obtained would have affected the revoking as well as the disposing part of the will; especially as all the misrepresentations which were supposed to influence the mind of the testatrix were directed against him in whose favor the will to be revoked was made.

Many cases have been cited from the English books to show that a paper purporting to be a will, but not proved as such before the ordinary, or the contents of such paper which has been lost, may be set up against a will duly executed and published, in order to revoke the will; but devises of land in

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England are subjects of proof in the courts of common law there in the ordinary course of trial; whereas here, by virtue of our statutes, the exclusive jurisdiction of wills, whether of land or personal estate, is given to the court of probate; and the decree of that court allowing or disallowing such will can never be inquired into by any other forum. It is true, the same tribunal holds appellate jurisdiction of these subjects, but it is to proceed in the same manner in relation to them as if the tribunal was different and composed entirely of different persons. In the case of Osgood v. Breed, 12 Mass. 525, and The Inhabitants of Dublin v. Chadbourn, 16 Mass. 433, this doctrine is clearly laid down; and the experience of all of us on the bench and at the bar will justify the assertion, that no instance has occurred in our common law courts of a will being attempted to be proved otherwise than by a decree of the probate court; or, if appearing to be so proved, of any attempt to defeat it by evidence to the jury. It follows that the cases cited from the English books, tending to show that questions of revocation have been decided there in the ordinary course of trial, are not applicable here.

Whether a writing, other than a will, made pursuant to the statute for the purpose of revocation, might be produced in evidence to defeat the operation of a will in an action brought at common law to enforce it, has never been determined; but considering that the subject in relation to wills is with us peculiarly of probate jurisdiction, there is reason to suppose that such paper ought to be proved in that forum, as well as a will or a codicil. But be this as it may, the revocation insisted on in this case is no otherwise a revocation than as it is a will, and as such, for the reasons before given, it can have no legal effect unless proved as such. The will exhibited for this purpose, so far from being proved, is disproved. It is before us as a nugatory and void instrument, and therefore there is no possibility of our giving any force or effect to any part of it.