Stickney v. Hammond , 1884 Mass. LEXIS 36 ( 1884 )

Devens, J.

It has heretofore been held that an instrument purporting to be a will, with a clause of revocation of former wills, cannot be offered in evidence as a revocation only, without a probate thereof. Reid v. Borland, 14 Mass. 208. Laugh-ton v. Atkins, 1 Pick. 535. Wallis v. Wallis, 114 Mass. 510. And for this substantial reason, that it must be inferred that the testator intended to revoke former wills for the purpose of giving effect to the new disposition of his property which he has substituted for that in his former wills, and if, for want of proper execution of the subsequent will, its defective construction, or other sufficient cause, proper effect cannot be given to it, we are not to suppose that he designed to die intestate.

We can find nothing to distinguish the case at bar from those heretofore decided, and the ground upon which they rest appears to us satisfactory. Indeed, the facts as they here appear illustrate the soundness of the rule. The testator had purposed only to add a codicil to his will made in June, 1877, and then in existence, exempting the executrix therein named from giving sureties on her bond. The scrivener to whom he applied for this purpose preferred to write out a new will, making the change suggested, and no other. He accordingly did so, and it was executed by the testator on September 17, 1877. The testator manifestly had no intention to revoke the will of June, 1877, except as he at the same time substituted therefor the instrument of later date, which differed from it only in a purely secondary matter.

The appellant deems that the case at bar may be distinguished from the case of Laughton v. Atkins, ubi supra, as the paper there offered as a will containing the revocatory clause was impeached and held invalid by reason of having been procured by undue influence and false representations, and a decree to that effect entered; while in the case at bar there was simply a failure to prove the later will to have been duly executed, no party having undertaken to do so. But the decree here made was still a refusal to admit the second instrument to probate, even if it rested upon the ground that no one had appeared or offered evidence to establish it. The appellant concedes that the executrix and the devisees under it have so conducted themselves that they cannot, in any way, further rely upon this second instrument as a will, or for any other purpose, as they were parties to the proceeding in which its invalidity was determined. But the appellant is equally bound by the decree. She was the widow of the testator; she had the general notice which was given to all when it was offered for probate; she was entitled to appear and be heard, if she deemed herself interested in the revocatory clause, or any other portion thereof. Where an instrument offered for probate as a will was, after a general notice in the usual manner to all persons interested, disallowed at the instance of an executor and devisee in a former will, it was held that an heir at law was bound by the decree. Laughton v. Atkins, ubi supra.

The ruling that the order and decree of this court was binding upon all parties interested in the second instrument, and that it could not be set up as a revocatory writing, was therefore correct. Exceptions overruled.