Rauchfuss v. Gifford ( 1939 )

The rule of law which I deem to be controlling does not result in a different disposition of the property of the deceased, but it gives effect to the unrevoked portions of the will. I cannot agree with the view that the entire instrument was revoked, because a reading of the uncanceled portions shows that a complete will remains. The testator did not cancel the expression of his intention to make a will, the disposition of his household furniture, the appointment of an executor, the attestation clause, or the evidences of due execution. An instrument which merely names an executor, without making any disposition of property, is a will. Mulholland v. Gillan (1903), 25 R.I. 87,54 A. 928; Conoway v. Fulmer (1911), 172 Ala. 283, 54 So. 624. Although in the present case it is of little practical importance whether the property is administered by the administrator or by an executor, the uncanceled portions of the instrument constitute a will and should be probated.

The protections which the law intends to throw around a duly executed will have been expressed in sec. 238.14, Stats., quoted in the majority opinion. That section specifies how a will "or any part thereof" may be revoked. Under this statute, certain parts of a will may be revoked, leaving others in effect. Michigan Trust Co. v. Fox (1916), 192 Mich. 699,159 N.W. 332. In Will of Byrne (1937), 223 Wis. 503,271 N.W. 48, certain clauses of a will had been stricken and it was held that only those clauses were revoked.

Rauchfuss canceled only particular clauses of his will. If a presumption of revocation arises from the fact of cancellation, that presumption affects only the canceled clauses rather than the will as a whole, because the statute expressly provides that parts of a will may be revoked by cancellation. The only evidence that Rauchfuss intended to revoke other parts of his will is the hearsay testimony of his granddaughter to the effect that Rauchfuss said the will was "no good." This testimony was not competent to prove revocation of the uncanceled portions of the will. Throckmortonv. Holt (1901), 180 U.S. 552, 21 Sup. Ct. 474,45 L. Ed. 663. When a will has disappeared, declarations of the testator may be used to prove that it was destroyed, but revocation of an existing will cannot be proved by such declarations.In re Valentine's Will (1896), 93 Wis. 45, 67 N.W. 12.

It is my opinion that the unrevoked portions of the proposed will constitute the will of the deceased and should be admitted to probate.

A motion for a rehearing was denied, with $25 costs, on September 12, 1939.