Stevens v. Stevens , 72 N.H. 360 ( 1903 )

The submission of the issue of revocation to the jury upon the evidence reported does not present any error of law prejudicial to the contestants. Conceding the soundness of their claim, — that the removal by the testator, with revocatory intent, of the seal from a will published as sealed is a revocation, of the will, and that if a will be found among the papers of the deceased with the seal torn off the presumption is, in the absence of explanation, that the seal was removed by the testator with intent to revoke the will, — the case does not fall within the principles relied upon. The will was not found with the seal apparently torn off, nor was it found among the testator's papers. The. fact that the will was not shown to have been in the testator's possession, or was not found among his papers after his decease in the condition in which it was presented for probate, assuming that upon the evidence a mutilation of the will could be found, upon all the authorities leaves no basis for the presumption of revocation. 1 Red. Wills 307; 1 Jar. Wills *134; Bennett v. Sherrod, 3 Ired. 303, — 40 Am. Dec. 410; Throckmorton v. Holt, 180 U.S. 552, 584. The evidence of mutilation was equally insufficient. The document itself furnished no evidence; it was apparently perfect.

The sole evidence upon which it is claimed it should be conclusively inferred that the seal was removed from the will by the testator, with intent to revoke the will, was the testimony of two of the subscribing witnesses that the seal put upon the will when it was executed was colored red, while the will when presented for probate bore a seal of a green color and larger size. Whether the seal originally put upon the document was different from the one borne by it at the trial was a question of fact determinable by the jury, according to the comparative weight in their estimation of the evidence furnished by the document itself (Fogg v. Moulton, 59 N.H. 499), which was admittedly sealed when executed, and that furnished by the recollection of the witnesses. Reasonable men might doubt the reliability of the recollection of the witnesses as to the color and size of a seal last seen by them at least ten years before. That the fact upon which the contestants relied was not conclusively established by the evidence, was a sufficient reason for the denial of their motion for a verdict.

But assuming that the only fact the testimony tended to prove — namely, that the will was originally sealed with a red seal — were established, the contestants stand no better. The tearing or cutting of a will, or the removal of a seal by either method, is evidence of an intelligent purpose to inflict injury upon the instrument. If a will which has been so treated is found remaining in the testator's possession, the doctrine of the cases upon which the contestants rely is, that inasmuch as such an act done by some person without authority from the testator would constitute a crime, the inference is not in the first instance that a crime has been committed, but that the act has been done rightfully, and hence by the testator or by his direction. It is matter of common knowledge that a seal such as was used in this case — a disc of paper attached by mucilage — by lapse of time may lose its power of adhesion and drop off, and that an intentional removal might be accompanied by some mutilation of the paper to which it was attached. However this may be, it is sufficient that the absence of any mutilation of the paper does not conclusively establish, nor is it evidence, that the removal was intentional. Whether the original seal fell off by accident, or was intentionally removed, is upon the evidence mere matter of speculation, and hence there is nothing for the jury. Deschenes v. Railroad, 69 N.H. 285. Upon the assumption that the case contains all the evidence, no ground appears upon which a verdict for the contestants could have been sustained. They therefore are not harmed by the refusal to order one in their favor.

The evidence of the testator's declarations that he had no will and that he had revoked his will were properly excluded. That he had a will was conclusively proved by the production of the document whose original authenticity was not disputed. The only force of the statements was to prove that the testator thought that he had done something to the will which in his opinion constituted a revocation, or that he thought it was revoked as matter of law from some change in his circumstances. P. S., c. 186, s. 15. A will can be expressly revoked only as prescribed by statute. P. S., c. 186, s. 14. The testator's own opinion that he has revoked his will is of no more probative force than his opinion that he has executed a will. In each case, the question is not of the testator's understanding, but whether he has fulfilled the conditions necessary to the exercise of the right. Hence it has been said that "the express revocation of a will . . . cannot be shown by declarations of the testator alone." Lane v. Hill,68 N.H. 275, 282; Hoitt v. Hoitt, 63 N.H. 475, 499, 500. In Lane v. Hill,68 N.H. 275, it was held that although the due execution of a will could not be found from evidence of the testator's declarations alone, nevertheless, "when there is evidence competent for the jury upon the question of due execution, and from which they may properly find such execution," evidence of declarations of the testator tending to corroborate the direct evidence of execution is admissible. This conclusion has been questioned in argument, but it is unnecessary to consider the point, because, as has already been seen, the case contains no evidence directly tending to establish a revocation of the will. Without such direct evidence of some act constituting revocation, the evidence, as was said in Lane v. Hill, supra, "is but proof of the testator's understanding, and the testator's understanding cannot take the place of the formalities prescribed by law." Hoitt v. Hoitt, supra.

Exceptions overruled.

All concurred.