Burtt Will

I cannot agree with the majority opinion. The conclusion is unsupported by, and contrary to, the cases cited, imputes to the testator an intention wholly inconsistent with the admitted facts, and would impose upon the law of Pennsylvania an unwarranted extension of a principle, the soundness of which is seriously questioned.

Thomas A. Burtt died October 6, 1941, unmarried and without issue, leaving as next of kin a cousin, Jennie Burtt Wildrick, appellant. He was a layman, and for 33 years was employed by and had a desk in the office of a member of the Philadelphia bar. In the drawer of this desk he constantly kept his will of 1906. It may properly be assumed that he had some knowledge of the law of wills, and purposely destroyed the will of 1939. He left an estate of $3,500. From all the facts and circumstances Burtt, the decedent, departed this life in the firm belief that he would die testate. Nowhere in the record can there be found any suggestion that he wished to die intestate.

This conclusion is supported by the following undisputed facts: Found in a drawer of the desk at which he worked for many years was a will dated November 26, 1906. In the same drawer were found 50 or 60 pages of testamentary writings. Among these were six sheets of paper held together by a metal clip, constituting in part a cancelled will without a first page containing the usual formal directions and revocatory clause, executed some time in August, 1939. Decedent's signature thereon, as well as those of the two witnesses, had been canceled by testator by pen strokes through the respective names. The date of cancellation does not appear. The majority and minority opinions of the orphans' court and the majority opinion of this Court concede that the will of 1906 was the only subsisting and probatable will. Numerous interlineations and cancellations appear thereon. Certain paragraphs had been crossed out, and in the handwriting of testator, at the top of the will, were written "Invalid" and "N. G." On the outer cover of the will he wrote the word, "Invalid." Unsigned marginal notations in testator's handwriting explained the cancellation of various paragraphs of the will or portions thereof, e. g., where the beneficiary died there appeared the word "deceased", and in the body of the will the name of such beneficiary was stricken out; the executor named in the will having died, a marginal notation appeared that another executor was to be appointed.

The third item of the will, with marginal notations in Burtt's handwriting, disposing of the residue, appears as follows:

"Third. All and every article or articles, money or monies of my said estate, personal or mixed, whichdeleted may remain in hand or in balance after deducting myas shown reasonable funeral expenses and the sums previouslyahead mentioned in Items First and Second, hereinabove, shall, without reservation or restriction whatsoever, be delivered to and paid over to my almost life-long friend, Lucas ("Luke") J. Krespach,Deceased Sexton of St. Joseph's Roman Catholic Church, Willing's Alley, 4th and Walnut Streets, Philadelphia, Pa.; or, failing him by reason of his decease, then it shall revert, in its entirety, toDeceased his sister, Mrs. Annie Muller (Miller), at present residing at No. 634 North 46th Street, at Philadelphia aforesaid or, failing her by reason of her decease, said legacy

Mrs. Elizabeth Ange — shall revert to her children, man the survivor or survivors of them."

Proponents of the will, appellees, are Elizabeth Miller Angemann, Harry Miller, Luke Miller, Joseph E. Miller, and Henrietta C. J. Miller, children of Annie Miller, deceased.

The disposition made of decedent's estate under the canceled incomplete will of 1939 was inconsistent with that of the subsisting will of 1906.

At the time testator signed his will of 1939 he remarked that he intended to make a new will, and in a subsequent letter to the witnesses of said will stated that he had already prepared some of the pages for the new will. There was not, however, any other subsequent will.

Jennie Burtt Wildrick appealed from the probate of the will of 1906. The hearing judge concluded (1) that the will of 1906 was impliedly revoked by the typewritten pages of 1939 because the disposition of property was totally inconsistent, and (2) that all the evidence clearly manifested an intention not to revive the will of 1906. A majority of the court en banc reversed the hearing judge and held, not as the majority opinion points out, "that because there was no express clause of revocation in the later will the earlier will was revived", but, that the will of 1906 had never been revoked and was, therefore, properly admitted to probate as the last will and testament of Thomas Burtt. This appeal followed.

The orphans' court was unanimous in holding that the will in question had probative value, and the majority opinion of this Court states that "we regard the writing, standing alone, as probatable . . ." In Seiter's Estate, 265 Pa. 202, 206, this Court said: ". . . before the question of revocation or cancellation can come up, it must appear that a perfect will was in existence upon which such question might be founded." Proper determination of this case requires that this Court determine the time at which a subsequent will containing no revocatory clause but making disposition of property inconsistent with that of the former and uncanceled will becomes effective as a revocation of the former will. We cannot assume, as does the majority opinion, that "We are therefore confronted with a probatable will, which had been revoked by a later inconsistent will." Whether there has been a revocation is the issue here. The pivotal question is not as the majority opinion states, "may an intention be shown not to revive a former will where a later revoked will isinconsistent therewith." The issue is not revival butrevocation. Revival presupposes revocation. There can be norevocation other than in the manner prescribed by the Act.Revocation, therefore, to be effective, must be made incompliance with Section 20(a) and (b) of the Wills Act,20 P.S., Sections 271 and 272.¹ There can be no parol revocation ofa written will. "What the statute intended to prevent is parolrevocation . . .": Ford's Estate, 301 Pa. 183, 195; Seiter'sEstate, supra, 206; Holmes' Estate, 240 Pa. 537, 542.

Confusion among the decisions regarding the effect of a subsequent will upon a prior will arises from conflicting rules enunciated by the ecclesiastical and the common law courts of England. The former held that revocation took effect upon the execution of the later will but that the earlier will might be revived if the evidence disclosed that the testator so intended: Ex parte Hellier, 3 ATK 798, 26 Eng. Rep. 1256 (1754). The latter held that all wills were ambulatory and were inoperative and of no effect until the death of the testator. Cancellation of a subsequent will eliminated the canceled will as effectively as if it had never been written. It never had any operation.

Ecclesiastical courts had jurisdiction of a will of personal estate, and common law courts were concerned only with a will of real estate. See Flintham v. Bradford, 10 Pa. 82, 91;Goodright v. Glazier, 4 Burr 2512, 2514, 98 Eng. Rep. 317, 319. To eliminate this conflict and to insure one common rule, Parliament enacted the statute of 1 Victoria, C. 26, Section 22 (1837), which provided that when a subsequent will making inconsistent disposition of property or expressly revoking an earlier will was canceled and destroyed the former could become effective only by a formal republication and re-execution.

Examination of the statutes of the respective states removes from consideration many conflicting views upon the question of revocation. The statutes of 16 states specifically provide that there shall be no revival of a former will by reason of the destruction of the subsequent will unless, by the terms of the revoking instrument or republication of the former, it has been reinstated.² By necessary implication, therefore, in these 16 states revocation must be considered as effective immediately upon the execution and publication of the subsequent will. It is, therefore, clear that the rule of law in these states can have no application here.³ New Mexico statute provides that the former will must be acknowledged as valid:New Mexico, Wills, 32-109. The statutes of Nevada, Virginia, and West Virginia provide that there must be a re-execution of the former will: Nevada, Wills, Section 9913;⁴ Virginia, Wills, Title 46, Section 5234; West Virginia, Wills, Section 4046. These three statutes are practically identical with the English statute. See Clark v. Hugo, 107 S.E. 730 (Va.). Indiana and Iowa laws provide for revocation by the "execution" of a subsequent will: Indiana, Wills, C. 3, 7-301 (3455); Iowa,Wills, Exrs. Admrs., Section 11855.⁵ The California statute has been similarly construed: In re Shute's Estate, supra;Lones v. Lones, 41 P. 771. The Georgia Code distinguishes between an express and implied revocation. The former annuls the instrument immediately while the latter takes effect only at the time that the instrument becomes effective as a will:Georgia, Wills, C. 113-402. The statutes of Colorado, Connecticut, Tennessee and Wyoming do not contain any provision for revocation by an "other writing": Colorado, Wills andEstates, C. 176, Section 40; Connecticut, Execution Probate of Wills, C. 256, Section 4880; Tennessee, Probate ofWills, Section 8097; Wyoming, Probate Code, 88-105. The decisions of the courts of these states may properly be considered here because we are not concerned with revocation by an "other writing" but only by an "other will." In Whitehill v.Habling, 98 Conn. 21, 118 A. 454, 455, the court held that one who attempts to show revocation by an other will "must show in fact that it was revoked by an other will whichsubsisted at the death of the testator . . ." In Hickey v.Beeler, 171 S.W.2d 277 (Tenn.), the court held that when the latter of two inconsistent wills is destroyed by the testator in his lifetime, the prior will remains unaffected since all wills are ambulatory. No cases appear in the reports of Colorado and Wyoming on this issue. The Louisiana code provides that all wills are revocable until testator's death: Louisiana,Revocation of Testaments, Art. 1690. The statutes of the remaining 21 states are substantially similar to that of Pennsylvania. Of these states which have passed upon this question, the courts of Florida (Schaefer v. Voyle, 102 So. 7), Illinois (Stetson v. Stetson, 66 N.E. 262), Minnesota (In reTibbetts' Estate, 189 N.W. 401), North Carolina (Marsh v.Marsh, 48 N.C. 77), Rhode Island (Bates v. Hacking,68 A. 622), and South Carolina (Kollock v. Williams, 127 S.E. 444;Taylor v. Taylor, 2 Nott Mc. 482), adopt the common law rule and hold that revocation by a will making inconsistentdispositions is effective only if the subsequent will is validand subsisting at testator's death. Until then it is ambulatory. The courts of Kentucky (Slaughters Adm'r. v. Wyman,14 S.W.2d 777), Maryland (Rabe v. McAllister,8 A.2d 922), Michigan (Cheever v. North, 64 N.W. 455), Mississippi (Bohanon v. Walcot, 1 Howard 336, Miss.), Nebraska (Williams v. Miles, 94 N.W. 705), New Hampshire (Lane v. Hill,44 A. 393), New Jersey (In re Davis' Estate, 35 A.2d 880) and Texas (Brackenridge v. Roberts, 270 S.W. 1001) follow the ecclesiastical rule and hold the revocation to be effective immediately and make revival of the prior will a question of intent. In Massachusetts, while Pickens v. Davis, 134 Mass. 252, holds that there must be evidence to show an intent to revive, Sewallv. Robbins, 29 N.E. 650, requires that the later will be produced and probated.

There are, therefore, 27 states in which statutory provisions control the question here presented. Of the remaining 21 statutory enactments 16 have been construed, 7 according to the common law rule and 8 according to the ecclesiastical rule. Connecticut and Tennessee must be considered as supporting the common law rule, which will increase the number of courts adopting the common law and Pennsylvania rule to 9, and leave 8 adopting the ecclesiastical rule of construction. The holdings of the Massachusetts courts appear to be confused. The decisions of this Court place Pennsylvania in the group adopting the common law rule. Only by a strained interpretationand reliance upon unfortunate dictum in some of the cases hasthe majority opinion reached a contrary conclusion.

In Lawson v. Morrison, 2 Dallas 286 (1792), there was only one will in existence at the time of death and this Court held that the same was properly admitted to probate. The decision was based upon an alternative argument by Justice McKEAN: "the mere circumstance of making the Will of 1779, is not virtually a revocation of the former, the contents being unknown, and it not appearing to have been in esse at her death, but rather the contrary, and that she had cancelled or destroyed it. No other person was interested in its destruction, from anything I can discover, except the appellant, or his brothers, who were not in America; and charity will induce a presumption, that she herself destroyed it. If this is the fact, the first Willis not thereby revoked, as neither could be complete wills,until the death of the testatrix, and her destroying it had thesame effect as if it never existed, unless it had been clearly proved, that she did it with an intention to die intestate. Should a contrary opinion hold, to wit, that the first Will was revoked, at theinstant the second was executed, yet the cancelling of the second by the Testatrix herself is a revival of the first, if undestroyed. Harwood v. Goodright, Cowp. 92." (Italics supplied).

This opinion further states: "Here is a goodsubsisting Will properly attested: There is no way to defeat it, but by proving it was revoked by another Will subsisting at the death of the Testatrix, or that she cancelled the later Will, so revoking all former ones, with a mind to die intestate." The word "subsisting" was stressed and it is apparent that the Court considered revocation by a subsequent will to be effective only if the later will was "subsisting" at the death of testator. In the instant case there is only one probatable and subsisting will. Admittedly, the will of 1939 had been destroyed by testator. Not until his death could either will take effect. The will of 1906 is the only "subsisting" will.

The case of Boudinot v. Bradford, 2 Dallas 266 (1796), while containing the statement by Justice McKEAN that "Where a second Will is cancelled, under circumstances that manifest an intention either to revive, or not to revive, the preceding Will, those circumstances must be proved", also contains the following explanatory statement: "The mere act of making a second testament, is a revocation of a preceding testament, inrelation to personal estate; the law throwing the personal estate on the executor as a trustee." This case is erroneously relied upon by the majority opinion for the reason that the distinction recognized by the courts in 1796 between wills of personal estate and wills of real estate no longer exists. That distinction has been removed by our Wills Act. Further, inFlintham v. Bradford, supra, 92, the Boudinot case was referred to as a case "sui generis, with strong peculiarity of facts." Chief Justice GIBSON, who beard the case at Nisi Prius, criticized the dictum in Boudinot v. Bradford and Lawsonv. Morrison. Justice COULTER, speaking for this Court, in Flinthamv. Bradford, supra, 90, adopted the following language of Lord Mansfield in Goodright v. Glazier, supra: " 'A will . . . is ambulatory till the death of the testator. If testator lets it stand till he dies, it is his will. If he does not suffer it to do so, it is not his will. Here he had two. He has cancelled the second. It has no effect, no operation. It is as no will at all, being cancelled before his death. But the former, which was never cancelled, stands as his will' ". Kerchner's Estate,41 Pa. Super. 112, falls within those cases where a subsequent will cannot be shown to have existed because of its complete destruction. See Shetter's Estate, 303 Pa. 193, 197.

In Shetter's Estate, supra, Harrison's Estate, 316 Pa. 15, and Koehler's Estate, 316 Pa. 321, this Court held that revocation by a later will or other writing could not be established by parol testimony. In each of these cases the document constituting the purported revocation was not produced. In Shetter's Estate the testimony showed that the document had actually been completely destroyed.

Ford's Estate, supra, does not support the majority opinion. There the clause of revocation contained in the later will which was subsequently revoked by tearing the signature from said later will was held to constitute an "other writing" within the Wills Act. The correctness of this conclusion need not be questioned here. Suffice it to say that the majority opinion in this case constitutes an unwarranted extension of a doubtful principle. The will of 1939 does not contain arevocatory clause. If it be effective to revoke a former willit is by reason of its existence as an "other will" within themeaning of the Wills Act, supra. Both in fact and law, however,it does not exist as an "other will." Testator intentionally destroyed all possibility of it ever becoming effective as such. The cancellation of the will by voiding his signaturethereon is no less a revocation than destruction by burning. If the revocation had been by burning, Shetter's Estate, supra, would be applicable and no effect whatsoever could be given to its former existence. Therationale of the majority opinion, however, is that althoughlegally testator has destroyed said will, nevertheless, byvirtue of its physical existence it remains effective to defeattestator's only probatable and subsisting will. This, however,is not and should not be the law in Pennsylvania.

The majority opinion is in error in concluding that the paper with the canceled signature, not provable as a will must be proved, may, nevertheless, be admitted in evidence and be effective to revoke a valid subsisting will although the WillsAct requires the same proof in both instances. Cf. Rudy v.Ulrich, 69 Pa. 177.

McClure's Estate, 309 Pa. 370, stressed as an authority for the proposition that a will making inconsistent disposition of property with that of a former will operates to revoke all former wills immediately upon its execution, likewise does not support the conclusion of the majority opinion. The correctness of that decision cannot be challenged. In that case, and in every other case where this Court has pronounced an effective revocation by a later will, there was in existence at the deathof testator another valid and subsisting will capable of beingproved as required by the Wills Act. See Gensimore's Estate,246 Pa. 216, 220. In the instant case there is only oneprobatable will; that is the will of 1906. The canceled will of 1939 could not have been probated. Cancellation of thesignature destroyed it for all purposes as effectively as if ithad been burned. Destruction of testator's signature rendered it incapable of being proved in the manner required by the Wills Act. To work a revocation, the later will must be duly executed and proved: McKenna v. McMichael, 189 Pa. 440,442. Also see Harrison's Estate, supra; Koehler's Estate, supra; Shetter's Estate, supra. Failure of the majority opinion to recognize this essential difference results in the erroneous conclusion that "Because a revocation is effectively accomplished either by an express clause of revocation or by inconsistent provisions, it follows that in either case, proof of the revocation may be established by the production of the later written will with testator's signature, duly canceled, even though not susceptible of probate."

That the unsigned notations "Invalid" and "N. G." and others do not of themselves void the will must be conceded:Williams' Estate, 336 Pa. 235, 237; Evans's Appeal, 58 Pa. 238,248. The majority opinion, however, considers them together with other oral and written statements made by testator at the time the canceled will of 1939 was executed and subsequent thereto as establishing that "testator did not intend to revive the 1906 will." Again the majority opinion erroneously assumes the fact at issue — revocation of the will of 1906. Ford'sEstate, supra, is not authority for holding such evidence admissible. In that case this Court held that the words spoken at the time the signature was torn from the will were admissible to show the intent with which the act was done. It was said (p. 198): "It is not the tearing up of a will that works its revocation, it must be torn up animo revocandi by the testator or at his direction, and when inquiry is made to show the intent, it opens up all the circumstances of what occurred at that time, including as the most important of all what the maker of the will said in the act of revoking it." (Italics supplied.) See Flintham v. Bradford, supra, 92. Declarations of an intention to make a new will cannot operate to effect a revocation of an existing will: Teacle's Estate, 153 Pa. 219,224. "A mere intimation by a testator of his intention by a future act to make a new disposition, does not effect an actual present revocation": Rife's Appeal, 110 Pa. 232, 235. The evidence relied upon by the majority opinion was admitted not for the purpose of explaining any action taken regarding an existing will; it was to effect a revocation of the will of 1906, and for this purpose such evidence is clearly incompetent. Not one iota of evidence is in any way related to the actual cancellation of the 1939 will. When that will was destroyed is purely a matter of conjecture.

Manning's Estate, 46 Pa. Super. 607, is also relied upon. The decision in that case appears to be in conflict withHarrison's Estate, supra, in that the subsequent will, held to have revoked the subsisting will, was not produced either as a probatable and subsisting will or as a canceled will. Clearly, this decision is contrary to the decisions of this Court.

The majority opinion refers to the doctrine of stare decisis and points out that Ford's Estate, supra, has been followed in three cases, Shetter's Estate, supra, Harrison's Estate, supra, and Koehler's Estate, supra. All of those cases, however, citedFord's Estate in support of the principle that there cannot be revocation by parol. In Shetter's Estate, supra, 197, this Court said: "A writing declaring its revocation must be produced, signed by the decedent, before an earlier will can be rendered nugatory." Harrison's Estate, supra, held that a subsisting probatable will could not be revoked by one purported to have been written subsequent thereto but which was not produced or proved. Koehler's Estate, supra, was of similar import. Stare decisis would require that in this case we should hold, as did the court below, that there can be no oral or parol revocation.

There is no long line of decisions supporting the rule laid down by the majority opinion. In fact, the majority opinion is a departure from the rule laid down in Lawson v. Morrison, supra, Boudinot v. Bradford, supra, and Flintham v. Bradford, supra, in which the issue now before this Court was considered. Again, stare decisis would prevent the enunciation of the rule now laid down by the majority opinion. Ford's Estate, supra, decided in 1930, is not decisive of the basic issue in this case. If it were, however, this Court need not regard itself bound by stare decisis. During the fifteen years since that opinion was adopted the rule therein laid down regarding revocation of wills has not been applied to a single case. That the rule of stare decisis is a salutary one does not admit of argument. It does not, however, require perpetuation of an erroneous interpretation of statutory law.

Whether a distinction exists between revocation effected by a will containing a revocatory clause and one wherein the disposition of property is inconsistent with a former will need not now be passed upon.

To adopt the majority opinion would introduce into the laws of wills in this Commonwealth a most undesirable principle. Instead of establishing a rule of law by which may be determined the validity or invalidity of a valid and subsisting will, there will result a most impractical and vacillating rule. A testator will have no assurance that — as in this case — his intended disposition of property will be valid and effective. The evils which Mr. Justice SCHAFFER, in Harrison'sEstate, supra, depicted as the probable result of permitting the contents of a destroyed instrument to be proven, will be multiplied. The door will be opened to the admission of parol evidence of "intention" and to all devious and sundry methods of perpetrating fraud and, therefore, the protection of the provision in the Wills Act for revocation in the manner therein provided would be rendered nugatory.

The decree of the court below should be affirmed for the reason that the will of 1906 has never been revoked in accordance with the requirements of the Wills Act.

¹ "No will in writing, concerning any real estate, shall be repealed, nor shall any devise or directions therein be altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided; or by burning, canceling, obliterating, or destroying the same by the testator himself, or by someone in his presence and by his express direction": Act of 1917, P. L. 403, Section 20(a).

"No will in writing, concerning any personal estate, shall be repealed, nor shall any bequest or direction therein be altered, otherwise than as hereinbefore provided in the case of real estate, except by a nuncupative will made under the circumstances set forth in section four of this act, and also committed to writing in the lifetime of the testator, and, after the writing thereof, read to or by him and allowed by him, and proved to be so done by two or more witnesses": Act of 1917, P. L. 403, Section 20(b).

² Alabama, Title 61, Section 26; Arkansas, C. 170, Section, 14528; California, Probate Code, C. 3, Section 75; Georgia,Wills, C. 113-403; Idaho, Wills, 14-307; Kansas,Wills, 22-242; Missouri, Wills, C. 1, Art. 20, Section 525;Montana, Wills, C. 77, Section 6999; New York, Wills, Art. 2, Section 41; North Dakota, Civil Code, Wills, Section 5664;Ohio, Wills, Section 10504-54; Oklahoma, Title 84, Section 106;Oregon, Wills, Section 18-304; South Dakota, Wills, Section 56.0222; Utah, Wills, 101-1-23; Washington, Probate Code, Title 10, C. 3, Section 1405. Section 41 of the Decedent Estate Law of New York provides: "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, shall not revive the first will, unless it appear by the terms of such revocation, that it was his intention to revive and give effect to his first will; or unless after such destruction, canceling, or revocation, he shall duly republish his first will."

³ Barker v. Bell, 46 Ala. 216; In re Shute's Estate,131 P.2d 54 (Cal.); Harwell v. Lively, 30 Ga. 315; In re Rinker'sEstate, 147 P.2d 740 (Kan.); In re Toomey's Estate,31 P.2d 729 (Mont.); In re Hill's Estate, 29 N.Y.S.2d 185; Melhase v.Melhase, 171 P. 216 (Ore.).

⁴ "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 shall not revive the first will, unless it appear by the terms of such revocation that it was the intention to revive and give effect to the first will, or unless, after such destruction, canceling or revocation, the first will shall be duly reexecuted": Nevada, Wills, Section 9913.

⁵ "Wills can only be revoked in whole or in part by being canceled or destroyed by the act or direction of the testator, with the intention of so revoking them, or by the execution of subsequent wills. When done by cancellation, the revocation must be witnessed in the same manner as the making of a new will": Iowa, Wills, Exrs. Admrs., Section 11855.