Opinion
August Term, 1849.
Where a testator, being sick in bed, called for his will and directed his son to burn it, and instead of doing so he retained the will and burnt another paper for the purpose of deceiving his father. and the father was thus deceived into the belief that his will was burnt: Held, that this did not amount to a revocation, the will not having been actually burnt.
APPEAL from the Superior Court of Law of BURKE, at Spring Term, 1849, Bailey, J., presiding.
A paper-writing was propounded as the last will of George Hise, deceased, by George W. Hise, and the probate was opposed by Joshua Fincher and his wife, Elizabeth, who is a daughter of the party deceased; and an issue of devisavit vel non was made up under the direction of the court. The script purports to bear date 22 June, 1843, and to devise and bequeath land and chattels to the widow of the deceased, to his son, the said George W. Hise, who is also nominated the executor, and to contain devises and bequests to four other children of the deceased, with a limitation over of the shares given to a daughter, Selina, upon her death without leaving issue, to the heirs of George W. Hise; and it is stated that Selina died in the lifetime of her father, under age and without leaving issue.
On the trial the due execution of the instrument, as a will to pass both real and personal estate, was proved and not disputed; and the only question was whether it had been revoked or not. To establish a revocation a witness was called for the caveators, who stated that George W. Hise, the propounder, was speaking to him concerning the paper-writing in issue, whether (140) before or after the testator's death does not appear, and said to him, "My father" (the party now deceased) "was lying sick in bed and requested us to bring him the will; the will was brought to him and he requested us to throw it into the fire and burn it; but I held the will and another piece of paper in my hand at the same time, and, for the purposed of deceiving my father, I threw the other paper into the fire in his presence, instead of the will, and put the will in my pocket." Thereupon the court instructed the jury that the burthen of proof was on the caveators to establish a revocation, and, to that end, it was necessary that the jury should not only be satisfied that the witness told the jury the truth in giving the declarations of George W. Hise, but also that those declarations were true. But if therefrom they should believe that George Hise, being desirous of revoking his will, requested his son, George W. Hise, to bring the will and throw it into the fire, and the son threw another paper into the fire, which was burned, and which the father believed to be his will, and the paper now offered as the will was secretly retained by the son George W., for the purpose of deceiving his father, and the father was thereby deceived, then it was in effect the same as if the paper purporting to be a will had been burned, and it was, in law, revoked. The jury found the revocation, the court pronounced against the paper, and the propounder appealed.
Avery and Gaither for plaintiff.
N.W. Woodfin, Craige and J. W. Woodfin for defendants.
Upon the supposition that the evidence of George W. Hise's declarations were admissible to affect the interests of the other devisees, the Court is of opinion that there was yet error in the effect given to them, as establishing, (141) if true, a legal revocation. The act of 1819, Rev. St., ch. 122, secs. 12 and 13, contains substantially the same provisions on this subject with those of Stat. 29 Charles II., and therefore is to receive the like construction. No devise of lands nor will of personalty is revocable, otherwise than by some other will or writing declaring the same, or by burning, canceling, tearing or obliterating the same by the devisor or testator, or in his presence and by his direction or consent, and all devises of land and bequests of personal estate "shall remain and continue in force until the same be burnt, canceled, torn or obliterated by the devisor or testator, or in his presence and by his consent and direction, or unless the same be altered," etc. It is obvious that the main purpose of the act is to alter the rule of law by which the revocation of a written will, duly attested, could formerly be established by parol proof merely; and that is done by requiring the intention to revoke to appear, not merely from the mouths of witnesses, but also by some overt act, apparent in another writing, or on the paper itself, alleged to have been revoked. It is to be done by another will or writing, or by the destruction of the paper by burning, canceling, tearing or obliterating. Now, it is impossible to say here that the paper was burnt, canceled, torn or obliterated. It is true, a great fraud was practiced on the dead man by his son's pretending to burn the will, while he in fact preserved it; that is, if it can be assumed, upon the evidence, that such were the facts. But the very question is whether upon this parol evidence, by itself, an intention to revoke can be found, or, if the intention be granted, whether the law will allow such intention to burn and revoke to be, in fact and law, a burning and revocation. The statement of the question seems to furnish an answer to it in the negative. The statute positively requires things to be done, and not merely said or intended to be done. The Court cannot dispense with those acts upon the ground that, in requiring them, the statute put it in the power of a bad man to deceive and defraud a (142) testator. That was for the consideration of the Legislature, which body has, nevertheless, used language on the subject which is clear and explicit, and which, therefore, the judiciary must observe, though, in a few very extraordinary cases, it admits the possibility of fraud and imposition. For it is clear the Legislature deemed it the better policy to submit to that inconvenience, in a solitary instance, now and then — since human sagacity is not competent to guard perfectly against fraud of every kind — than to let in the more extensive and frequent mischief arising from perjuries committed in proving verbal directions to burn or cancel a will, and a supposed belief of the testator that it had been done. We conceive the words of the act are diametrically opposed to the hearing of any evidence of the kind, and that to effect a revocation of a will there must be deeds, within some one of the definite words used. The counsel opposed to the will have adduced but one case having any analogy to the present, and that is very slight. It is that of Bibb v. Thomas, W. Bl., 1043, where the will was slightly torn by the testator and thrown by him into the fire and slightly burned, and it was held that it was revoked, notwithstanding another person took it out of the fire and preserved it, without the knowledge of the testator. But the reason given for it was that case fell within two of the specific acts described in the statute, namely, tearing and burning; for, though the burning was very slight, yet, having come from the act of testator in throwing the paper on the fire with intent to burn it, that was sufficient within the statute.
In Reed v. Harris, 6 Adolph. and El., 209, Lord Denman, in speaking of that case, expresses a doubt whether the proof there would now be deemed sufficient. But it is not necessary to question it at present, as our case is essentially different in (143) the very facts on which Bibb v. Thomas was put, since here neither tearing nor burning happened in the slightest degree. And, on the contrary, Reed v. Harris is directly in point to the question before us. There an old and infirm man threw his will, inclosed in an envelope, into the fire, and a devisee in the will snatched it off, a corner of the envelope only being burnt, but promised the testator to burn it, and pretended to have burnt it. Yet the court was unanimous that the will remained in full force, and that very devisee recovered under it in ejectment. It was so held by force of the words requiring the palpable acts of burning and so forth, in exclusion of intentions and unexecuted attempts, shown merely by parol, which it was the policy of the law not to hear by itself. The judgment in that case proceeds, we think, upon a sound interpretation of the statute, and it is decisive of the question here. Indeed, Mr. Justice Williams in his argument puts, by way of illustration, the very case stated in this bill of exceptions. His words are these: "It is argued that if a testator throws his will on the fire with the intention of destroying it, and some one, without his knowledge, takes it away, that is a fraud which ought not to defeat his act. But so it might be said that if a testator sent a person to throw it on the fire and he did not, the revocation was still good. Where would such constructions end? The effect would be to defeat the object of the statutes, which was to prevent the proof of cancellation from depending on parol evidence." The case is the stronger because, in a subsequent case, the Court held, upon the same facts, that as to copyhold lands, which are not embraced in the statute of frauds, this will was revoked. Reed v. Harris, 3 Adolph. and Ellis, 1.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: White v. Casten, 46 N.C. 201.
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