Simmons v. Simmons

By the Court, Gould, J.

The due execution of what purports to be Peter Simmons’ last will and testament, on the 14th day of July, 1855, is sufficiently proved. On that point the parties before us agree. They also agree that in April 1855, Peter Simmons duly made and executed a last will and testament; which in July, 1855, (soon after the execution of the will first named, and on the same day,) was destroyed by the testator’s direction, but not in his presence; he being in an adjoining room. The contents of this will are not proved. A will duly executed by the same testator, dated September 14th, 1852, is also admitted in evidence; which purports to dispose of the testator’s whole property. The will of July 14th, 1855, after giving sundry legacies, and making some specific devises, divides in equal shares among his “legal heirs-, nine in number, the residue of his real and personal estate; and then provides that its legacies are to be paid “out of bonds and notes in bis possession, and any real estate not herein disposed ofthat is, not specifically disposed of.

The respondents claim that the will of July, 1855, was properly admitted to probate, by the surrogate of Albany county; and that his decree, so admitting it, should be affirmed. The appellants claim that the three testamentary instruments, together, constitute the will; and must all stand as one will. And, since that of April, 1855, confessedly, cannot be proved in detail, that there is a whole will incapable of proof; hence the testator is to be pronounced intestate; and the surrogate’s decree must be reversed.

The argument before us proceeded upon the assumption that the revised statutes (2 R. S. 4th ed. 246, § 35,) had so entirely altered the law, in respect to the revocation of wills, that the English cases, and our own older decisions, are inapplicable. This is an entire mistake. The section referred to says “no will in writing,” (except, &c., to which exception special attention will be hereinafter called,) “nor any part thereof shall be revoked, or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation,” &c. The revised laws of 1813 (1 R. S. 365, § 3,) say “no such last will and testament duly executed, &c. or any part thereof, shall be revocable, or be altered, otherwise than by some other will or codicil in writing, or other writing of the party to such last will and testament, declaring the same,” &c. The marginal reference of the revisers is to the English statute 29th Charles 2d, ch. 3, § 6; which 6th section is, “no devise in writing, &c. or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same,” &c. ■ ( Wilson, 515.) So that the English cases, and all cases in our own courts, have been decided on the revocations of wills, under the same statute that we now have. And the whole doctrine of constructive revocations has grown up under a prescribed rule as strict as the one that now governs us; and that doctrine is the doctrine of our common law, as well as that of the revised statutes.

It should be observed that, between a codicil and a subsequent will, there is this difference of construction ; a codicil is a republication aná ratification of so much of the prior will as it does not revoke; whereas a new will, (if it provides for a full disposition of all the testator’s estate,) though inconsistent but in part with the former will, and absolutely agreeing in part, revokes the whole prior will, by substituting a new and last disposition for the former one; since it must revoke in part, (so far as inconsistent;) and it were merely idle to continue the former one in force for those parts which are fully earned into effect by the new one. (Powell on Dev. 543, 4. Vesey, 187.) Note, also, 3 Wilson, 515, and the same case reversed, 2 Bl. Rep. 937; which although deciding—where the new will was not produced and, its contents were not knowm-dhat merely a “different disposition” (where that phrase, so limited, was found by special verdict) by a new will would not absolutely revoke a former will, (produced and proved;) yet plainly shows that, had the new will been produced, and its provisions even but in respect to the part of the property in question been shown to be inconsistent with the former one, it would have been held a revocation. The common sense of it seems to be clearly stated (though but in the argument) in 3 Wilson, 506: “It is certain no man can die with two wills;” {i. e. two wills as to the same subject matter, as in the case before us, each disposing of his whole property;) “the last must prevail.”

The statute of Charles 2d (as quoted) would seem to show that our present statute has been, to some extent, misunderstood. For while “ some other will or codicil-in writing” does, by the more apparent reading of the statute itself, as well as by the whole current of English decisions upon that statute, always work a revocation where its provisions are inconsistent with the former will; if the revocation is to be by some writing other .than a will or codicil, it must be by .“other writing declaring the same.” The “ declaring” (as necessary to revocation) applies to the “other writing” only, and not to the other will, &c.; although a revoking clause may be, and frequently is, inserted in a will or codicil, “from abundant caution.”

Let us now refer to the exception in the revised statutes, of which a word has been said, in passing; (2 R. S. 4th ed, 246, § 35,) “no will in writing except in the cases hereinafter mentioned.” Then immediately follow ten consecutive sections, with provisions as to total and partial revocations; and then follows the 46th section, (p. 248,) as to reviving a revoked will: “If, after the making of any will, the testator shall duly make and execute a second will, the destruction, canceling, or revocation of such second will,”^(a) “shall not revive the first will, unless it appears by the terms of such revocation, that it was his intention to revive, and give effect to his first willor, unless he then republish the first. Here, by legislative and simultaneous construction, a second will “ duly made and executed,” (without any clause declaring the former, one revoked,) is shown to have put thé first so utterly out of vital existence, that it needs either republication (tantamount to an entirely new execution) or an express revivor by the terms of the writing revoking the second. Whether this section be considered as the last of the excepted cases (of § 35,) or as a new and substantive construction of section 35, its effect is the same. And here the revisers did álter our law and the English. And a consideration of the English rule, as by their decisions, (their statute having no such provision,) shows the view, taken above, of this latter section, is the true one. For while, in England, if a former will were (in law) re-' voked by a subsequent one, on the ground of inconsistency alone, an express revocation of the latter (or its proper canceling, or destruction,) ipso facto revived the former, if it remained in existence; (Perkins, § 479; 4 Burr. 2512; Powell on Dev. 549;) still, if the second in terms expressly revoked the first, a revocation or destruction of the second did not revive the first. By the independent substantive act of express revocation, the first became immediately void, even though it remained in existence. (Powell on Dev. 551. Doug. 40. Cowp. 53. See also 2 Dallas, 266; 3 Conn. 576.) The dictum in Cowper, 92, by Lord Mansfield, in a case where the point did not arise, cannot prevail against his own decision. (Cowp. 53.)

[Albany General Term, December 7, 1857.

Further, our own courts, since the revised statutes, plainly hold, in regard to the whole matter of wills and their execution, that the substance of .the testator’s intention—if manifested by such acts as the law recognizes—is.to govern, in preference to anjformal or literal following of the words of the statutes, (See 26 Wend. 332; 3 Barb. Ch. 164; 15 Barb. 304; 4 Comst. 145.)

In view of these principles, both of plain statute construction, (§ 46, as above,) and of reiterated decisions on just such a statute as ours, I am unable to see how the will of July, 1855, which clearly provides for a full disposition of all the testator’s property, can be held otherwise than inconsistent with even the valid existence of any prior will. I think the surrogate’s decree should be affirmed.

Judgment affirmed.

W. B. Wright, Ha/rris and Gould, Justices.]

(a) The revisers here manifestly use the word “ will ” (unqualified) as ex m termini meaning a complete disposition of the testator’s whole property, and therefore any second one is necessarily a revocation of any former will. Observe, also, in contradistinction, that the English statute speaks of revoking; a devise, not necessarily a wiCl.