Opinion
04-18-1811
Hughes v. Hughes's Executor. [*]
Leigh, for the appellant
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At a court held for Amelia county, the 23d day of February, 1809, a paper, purporting to be the last will and testament of Anne Hughes, deceased, bearing date the 18th day of November, 1804, with a codicil thereto annexed, bearing date the 19th of December in the same year, was exhibited for probate, and contested by John Hughes. Sundry witnesses being examined, and arguments of counsel heard, the court admitted the paper to record as the will of the decedent; and Joshua Chaffin, one of the executors, qualified as such, (without giving bond or security, it being so directed by the testatrix,) Parham Booker and Waller Ford, two of the executors, having relinquished their right. Upon an appeal to the superior court of law, this judgment was affirmed; and John Hughes again appealed to this court.
On the part of the appellant, the following documents were offered in evidence, viz. 1st. A copy of a deed of trust from the testatrix to Joshua Chaffin and Waller Ford, dated the 20th of October, 1807; 2d. A record of certain proceedings in Amelia county court, for the purpose of trying whether the said Anne Hughes was a lunatic, or person insane; 3d. A report of certain commissioners, dated December the 8th, 1807, declaring her, at that time, a lunatic; and, 4th. An order of the said county court, confirming their report, and appointing a committee to take charge of her person and estate, dated December court, 1807.
The testatrix, by the paper purporting to be a will, emancipated all her slaves, (by name), and devised to Fanny, Henderson and Tinsley, (three of them,) twenty-eight acres of land; giving the residue of her land to Edward Hughes, son of Blackburn Hughes, together with a desk, and her interest and claim to a still in his father's possession. She farther gave to Anne Hughes, daughter of Blackburn Hughes, a feather bed and furniture, and a riding saddle; to Polly and Henderson (two of the Negroes) a bed and furniture; to the Negroes, for their support, all the provisions on hand at the time of her death, and the growing crop. All the remainder of her estate she directed to be sold, and, after paying her debts, to be equally divided between George B. Hughes and John Hughes, sons of Blackburn Hughes. She desired no appraisement or inventory to be taken of her estate, and appointed Blackburn Hughes, Waller Ford and Parham Booker, executors.
By the codicil, she emancipated three negro children, whose names had been omitted in the will; bequeathed to Henry and Polly (two of the Negroes) each a cow; and appointed Waller Ford, Joshua Chaffin, Blackburn Hughes and Parham Booker, executors; desiring that they should not be compelled to give security for their executorship.
By the deed of trust she " granted, bargained, sold and confirmed to Joshua Chaffin and Waller Ford, and to their heirs for ever, all her estate, both real and personal, to wit, a tract of land containing 186 acres, twenty-six slaves, (by name,) her stock of every kind, household and kitchen furniture and plantation utensils, and also all debts that were then due to her by bond or otherwise, or that might thereafter become due, and the reversion and reversions, remainder and remainders thereof, and all the estate, right, title, interest, property, claim and demand whatsoever, of her the said Nancy Hughes, of, in, and to the premises; " covenanting for herself and her heirs, to warrant and " for ever" defend the same to the said Chaffin and Ford, and their heirs; " Nevertheless upon this special trust, that they, or the survivor of them, shall take into their possession every part of the estate herein mentioned, and have the sole management thereof, and the profits arising therefrom to be paid unto the said Nancy Hughes, annually, for her benefit and support, during her natural life; and it is the true intent and meaning of these presents that, at the death of the said Nancy Hughes, every thing herein contained between the parties is to become null and void." This deed was duly recorded the 22d of October, 1807.
On the part of the appellee, Waller Ford, and Dudley Seay, the subscribing witnesses to the paper purporting to be a will, clearly proved the competency of the testatrix to make a will on the day of its date. It also appeared in evidence that, in the year before her death, but on what day was not stated, she made another will; but Waller Ford, one of the subscribing witnesses to that instrument, (by whom also it was written,) did not think her competent then. He said the slaves were emancipated in both. The second will was not produced; but Ford deposed that it differed from the first only in this, that, in the second, she left some provision to compensate Mr. Chaffin and himself for their trouble. " As a lawsuit concerning the will was expected, the estate was directed to be kept together until the decision of the lawsuit, and they were to have the profits until it should be decided. The land, also, (to the best of the recollection of the witness,) was directed, in the second will, to be sold, and he believed the Negroes were to be hired out until the suit should be decided; that the hire of the Negroes, and use of the money for which the land should be sold, was, in like manner, to go to compensate them for their trouble; and (a law having passed for removing out of the state Negroes that should be emancipated) the second will directed the expense of removing them to be paid out of that money. But as to this, the witness was not very particular; neither was he so in writing the will. He stated that at that time, the testatrix could hardly speak at all, and appeared quite like a child; seeming, at some lucid intervals, to have some sense, but not enough to make a will; that Mr. Chaffin told him in what manner she wanted to have it written; and, when it was finished, he gave it to a negro, and told him to give it to Mr. Chaffin. He though it of no account; otherwise would have been more particular."
Dudley Seay, the other subscribing witness to the second will, but who was not present when it was written, and knew nothing of its contents, deposed that he thought her competent, at that time, to make a will; having had many dealings with her about the time; and that Mr. Ford and she both declared in his presence that it had been read to her, and she was satisfied with it.
Mr. Ford moreover deposed that he was present when the testatrix signed the deed of trust; that she asked him whether her executing that deed would interfere with her will, and he told her that, in his opinion, it would not. She seemed very anxious lest her Negroes might not be free, and said she would not execute any writing that would interfere with her will.
Dudley Seay was also a witness to the deed, and deposed that she assigned, as a reason for making it, that her brother and relations were going to have trustees appointed, and she thought, if there were to be any, she ought herself to have the choice of them.
Note. The parol testimony, concerning the declarations by Mrs. Hughes, of her intention not to revoke the will by executing the deed, was objected to by the counsel for the appellant; but the court consented to hear it, reserving the question, whether it ought to be regarded, or not; upon which they afterwards pronounced no opinion; probably conceiving it unnecessary to consider the point in this case, because the deed, in itself, was not sufficient to operate a revocation of the will. --Note in Original Edition.
Doctor Bathurst Randolph, one of the commissioners appointed by the county court of Amelia, was also examined, and stated his opinion that Mrs. Hughes was in a state of mental derangement, not only at the time of her being examined by the commissioners, but a long time before. His impression (though he could not be positive) was, that she must have been diseased both in mind and body six months or more. Dudley Seay also saw her then, and did not think her as sound as formerly, but supposed it proceeded from her being disturbed by the number of people about her: she had been bed-ridden, and was in that situation when the commissioners came to examine her.
Judgment affirmed.
Leigh, for the appellant, submitted, without comment, the evidence as to the sanity of the testatrix at the time the will was executed; and insisted,
That (allowing the will to have been good in its origin) it underwent, during the testatrix's life, a twofold revocation; 1. By her deed of trust subsequently executed, and comprising the whole subject of the will; 2. By the commission of lunacy afterwards issued, and never revoked, by the court of Amelia.
1. By the trust deed, Anne Hughes conveyed to the trustees the whole legal estate meant to be disposed of by the will, in respect both to subject matter and quantity of interest; subject to the trust expressly declared by the deed--which was a trust for her support during life; and (where such declaration of trust stopt short) to the use implied by law--a resul ing use to her heirs at her death. This would be, without doubt, the legal effect of the deed, but for the clause avoiding it at the death of Ann Hughes. Now, as every part of a deed should (if possible) be made to take effect, and every word to operate in some shape or other; and as the words of inheritance, (they are peculiarly strong,) limiting the legal estate in this deed, cannot fully enure, if at all, on any other construction; it is, therefore, a just construction to refer this clause of avoidance, not to the legal estate vested in the trustees, but to the trust estate vested in the grantor, so as to determine the latter only, and not the former, with her death. The like words of inheritance, in a trust deed, have been adjudged to pass the whole legal estate to the trustees. And it was formerly held that even in a will, where the construction is more liberal, if a particular estate be expressly devised, a contrary intent is not to be implied. Still less should such looseness of construction be admitted of a deed. Therefore, though by this clause of avoidance, Anne Hughes's trust estate ceased with her life, yet the legal estate of the trustees continued, the use thereof (which the statute of uses executed into possession) resulting to her heirs. But if this view be erroneous, and the clause of avoidance be applicable to the legal estate vested in the trustees, then they took by the deed a base fee determinable by the grantor's death. But still they took a fee. And there is no difference, in point of ampleness and quantity of estate, between a base qualified fee-simple, and a fee-simple pure and absolute.
Hill. Shep. Touch. 507, in note, and 521.
2 Bl. Com. 380.
Bagshaw v. Spencer, 2 Atk. 570, 577.
Popham v. Bamfield, Salk. 236.
Co. Litt. 18, a, 10 Rep. 97, b.
Such, then, being the nature and effect of the deed, it is in law an absolute revocation of the previous will disposing of the same subject. For the property devised by a will must remain in the testator, in the same plight, and unaltered, to the time of his death; for any alteration, or new modelling, will work a revocation. So inflexible is this rule, that, though the alteration in the legal estate, in effect, leave the testator as to beneficial interest in the thing in the same plight as before, yet the will is thereby revoked. Neither is there any mode of conveyance, or species of property, exempt from the rule. No matter whether the conveyance be by deed at common law, or deed operating under the statute of uses; nor whether the subject be equitable or legal; nor whether, if it be a trust, it be a limited or resulting one; nor whether it lie in livery or grant; nor whether it be realty or personalty: in all cases, where the whole estate is conveyed away, though the ultimate reversion come back to the grantor by the same instrument, it operates as a revocation of a prior will.
Sparrow v Hardcastle, 3 Atk. 798, 803; S. C. Amb. 224, and 7 T. R. 416, in notis.
Fraunces's Case, 8 Rep. 89, b. 93, a.
Burgoigne v. Fox, 1 Atk. 575.
Lord Lincoln's Case, 1 Eq. Cas. Abr. 411, pl. 11, and 2 Ves. jun. 426, et seq.; Ibid. 603, in notis.
Pollen v. Huband, 1 Eq. Cas. Abr. 412, pl. 12.
Sparrow v. Hardcastle, 3 Atk. 798, 803.
Abnes v. Miller, 2 Atk. 593, and Hone v. Medcraft, 1 Bro. C. R. 264.
Brydges v. Duchess of Chandos, 2 Ves. jun. 417; Goodtitle v. Otway, 7 T. R. 399, 419; S. C. 2 Ves. jun. 604, in notis, 3 Ves. jun. 651, and 1 B. & P. 576, where the authorities on this subject (which abound in the books) are all reviewed by the courts of Chanc., C. P., and K. B. See too a complete and lucid statement of them, 1 Wms. edit. of Saund. Rep. 277, n. 4.
This principle goes the length of deciding the present case. Here, the same estate in omnibus, meant to be passed by the will, passed out of the testatrix by the deed. And that circumstance is conclusive: for that it is, which makes the basis of the rule, as is illustrated by the diverse effects of a mortgage in fee, or of a covenant to convey, according to the different views of courts of law and of equity. A mortgage in fee is a total revocation at law, and pro tanto only in equity: because, at law, such a mortgage is regarded as a conveyance, but in equity only as a pledge, a mere chattel interest: a covenant to convey is a revocation in equity, but not at law; because, as it may never be performed, it passes no estate at all at law, while equity considers it as tantamount to an actual conveyance.
3 Atk. 804, et seq.; 2 P. Wms. 332, 334; Ibid. 624, S. P.
If objected, that here was no intent to revoke the will by the deed, the fact is agreed: but the same objection would equally apply to almost every case of revocation implied from alteration in the estate of the testator, and has been often overruled; such revocation being a consequence of law, and the intention immaterial. Not to mention weaker cases that abound and concur--revocations of prior wills have implied from alterations in the estate, necessarily and expressly done, to effectuate, and to confirm the will.
Marwood v. Turner, 3 P. Wms. 163, case stated by Lord Hardwicke, 3 Atk. 803, Arnold v. Arnold, 1 Bro. C. R, 401, and n. 4; 1 Wms. edit. of Saund. 277, cited supra.
It may be objected, that on the testatrix's death, the use of the estate being no further limited, resulted to her heirs, and so they were in of the old use again, and that precisely at the moment when the trust estate under the deed ceased, and the interests derived from the will commenced; therefore, the deed did not interfere with the will. But the estate came back by a new limitation, and (whether so intended or not) the deed was incompatible with, and so revoked, the will. And in Parsons v. Freeman, Lord Hardwicke said, " If one seised in fee devise, and then levy a fine to his own use in fee, this has always been held a revocation, though the testator was in of his old use," which he thought " a prodigious strong case:" and truly so it was; for so completely was it the old use, that if the estate be derived ex parte materna, the descent is not diverted from the maternal blood by such new limitation. Now, if such a conveyance as that, which passes the estate out of the testator, instantaneously to return, be a revocation of a prior will; much more shall the deed, in the principal case, work such revocation.
Brudenell v. Boughton, 2 Atk. 273; Darley v. Darley, 3 Wils. 13; Hick v. Mors, Amb. 216; Parsons v. Freeman, best reported 1 Wils. 310.
Abbot v. Burton, 1 Salk. 590, and Martin v. Strachan, best reported 5 T. R. 107, in notis.
As to the reason of the rule--favour to the heir; the reason of favouring our system of decedents is as strong in regard to our policy, as is the reason of favouring the British system, in regard to theirs.
It may be said, the rule contended for is but the general rule, subject, like all others, to exceptions. Agreed. But this case resembles none of those exceptions, in fact or in principle. It is not like a testator changing by deed the trustees of a trust estate devised by prior will; which is no revocation; nor like partition between tenants in common; nor like a subsequent surrender of a copyhold before devised; nor like the case where several deeds make one conveyance, and a devise, in the interval between the first and last, is held not revoked by the last, because all parts of the conveyance make one whole, and relate to the beginning; nor like the case put by Lord Hardwicke, in Parsons v. Freeman, of a testator subsequently converting an equitable estate disposed of by will into a legal one; which he thought would not revoke the will; though he afterwards mentioned this opinion doubtingly; and the converse thereof is certainly not true. Williams v. Owens was decided on similar ground, it being held, that the will there operated on an equitable estate, and that the subsequent deed had no other effect than to give the devisor a legal, in place of the equitable estate, of which he was seised at the time of making the will. The decision, however, was afterwards questioned, explained, and finally exploded. The case of Loyd v. Spillet is a distinct one, decided on the ground, that there nothing more was done by the deed than to affirm the will, in order to secure the object of both in all events, and, therefore, the trustees in the deed were held trustees for the benefit of the will. That case does not touch our question. But it may be objected, lastly, that the deed in this case was only for a particular purpose, and so a revocation of the will only pro tanto. But the excepted cases out of the general rule of revocation, grounded on the deed being for a particular purpose, and so a revocation pro tanto only, " have been confined to mortgages and securities for money, and to other conveyances for raising money to pay debts." The opinion of Lord Chief Justice Eyre, indeed, in Goodtitle v. Otway, would extend the bounds of such exceptions: but the rest of the court differed from him, and their judgment was affirmed in K. B. And in that case, the will was revoked by the passing of a base fee out of the devisor. In Lord Lincoln's Case, " nothing could be more decidedly particular than the purpose for which he made the deed" --to provide for a marriage that never took place, and never was likely, nay, never intended to take place. Yet was the deed held to revoke the will in toto; and the decree has been repeatedly, by the highest authorities, and sometimes against the strongest inclination to renounce it, recognised for law. Nay, where the particular purpose of the subsequent conveyance has been to confirm the will, the conveyance, passing the estate devised out of the testator, has been held (as we have before seen) to revoke the will. The truth, is although the conveyance, whereby an estate before devised is altered, be evidently for a particular purpose, yet if the whole estate be affected thereby, the conveyance will work a revocation of the will; and to make such conveyance a revocation pro tanto only, not only its purpose must be particular, but its effect partial.
Doe v. Pott, Doug. 722.
Luther v. Kidby, 3 Coxe's edit. of P. Wms. 170, n. B. Tickner v. Tickner, cited 3 Atk. 742, 745, 750.
Thrustout v. Cunningham, Wm. Bl. Rep. 1046.
Selwyn v. Selwyn, 2 Burr. 1131, and Roe v. Griffith. 4 Burr. 1952.
1 Wils. 311.
3 Atk. 804.
1 Wils. 311.
2 Ves. jun. 595.
3 Ves. jun. 684.
By Lord Alvanley, (then master of the rolls,) who gave the opinion in Harwood v. Oglander, 6 Ves. jun. 218, et seq.
S. C. on appeal, 8 Ves. jun. 127.
3 P. Wms. 344.
By Lord Hardwicke, 3 Atk. 805; Lord Lough-borough, 2 Ves. jun. 430, et seq.; Master of the rolls, 6 Ves. jun. 219, et seq., and again by Lord Chancellor, 8 Ves. jun. 126.
1 B. & P. 598.
7 T. R. 399.
1 Eq. Cas. Abr. 411, cited supra.
See 3 Atk. 803; 7 T. R. 419, 420; 2 Ves. jun. 430; 1 B. & P. 589, 614, 615, 619; Doug. 722.
See the cases cited on the point of intention, supra.
3 Atk. 749, case mentioned by Lord Hardwicke. See, too, Pow. on Dev. 579.
2 Ves. jun. 431, 432.
2. But admit this reasoning to be fallacious or inapplicable, if the deed was not, the commission of lunacy was, a revocation of the will.
According to both civil and common law, a subsequent lunacy is no revocation of a prior will: but our law, in effect, compels lunatics to die intestate. The clause referred to expressly intends, not hospital lunatics, but those in custody of committees. It has been thought that this clause was designed, not to compel, but to provide for, the intestacy of lunatics; but on that construction it is unnecessary and idle. To all objections to the effect of this commission, on the score of irregularity in the proceeding whence it resulted, I answer, that this court is not now reviewing, in an appellate character, that proceeding; and that, though it be not conformable to the course of the English chancery in like cases, the paramount authority of our own law has been substantially pursued; for the clause before quoted ordains the appointment of a committee for " all idiots and lunatics in like manner as before directed" for hospital idiots, & c. and for these latter the courts are expressly authorized to appoint committees. Regular inquests on such occasions, are unnecessary and unwonted in Virginia. Nor was the commission of lunacy in this case ever revoked: there are but two ways it could be done--by scire facias, which is obsolete; or by petition in chancery: and here no such proceeding was ever had.
Just. Inst. 1, 2, tit. 12, s. 1; Forse & Hembling's Case, 4 Co. 61.
Rev. Code, vol. 1, c. 120, s. 17, p. 235.
1 Harr. Ch. Prac. 492, et seq.
Rev. Code, vol. 1, c. 120, s. 6, 7, p. 234.
1 Sid. 124.
1 Fonb. Eq. 60.
In one way or the other, or both, therefore, the will of Ann Hughes has been in law revoked; and it has been settled in this court, that such implied revocations are cognisable before courts of probate.
Wilcox v. Rootes, 1 Wash. (VA) 141; Yerby v. Yerby, 3 Call, 339.
David Robertson, for the appellee. 1st. As to the alleged revocation by the deed of trust. If any of the authorities quoted. have any application, I am much mistaken. If they did apply, this court should not be bound by adjudications, the absurdity of which some of the British judges admit to be " shocking." But in fact, the cases cited have no bearing on the subject; for no case has been produced in which an express intention not to revoke the will appeared in evidence.
Per Lord Mansfield, in Doe v. Pott, Doug. 722.
The object of the deed was to convey an estate, for the life only of Mrs. Hughes, to the same gentlemen who were to be her executors. The whole instrument must be taken together; the restrictive or explanatory clause in connection with the donative. There was no such clause in any of the cases relied upon by Mr. Leigh. There is not the smallest incompatibility between the deed and will in this case. The will took effect at the death of the testatrix, and she was very anxious to prevent it from being set aside.
All the cases cited are reducible to two classes; 1st. Where there was a conveyance of the whole property immediately; (that of a common recovery is a striking example; ) 2d. Where a party, having a temporary interest, surrenders it, and takes a different interest in exchange.
The revocation must always arise from a change of the intention of the testator, or, necessarily, from the change of his estate; neither of which is the case here.
2d. As to the revocation by the commission of lunacy. A greater absurdity would result from this proposition than from the other. Our act of 1792, concerning wills, (passed December 14th, 1792,) says that a will shall not be revoked, but by cancelling, or by a subsequent will, codicil, or declaration in writing. Yet it is contended that by an act of the same session of assembly, (passed December 24th,) a will is declared to be, ipso facto, revoked by a subsequent privation of understanding! But these two acts may stand very consistently together.
Rev. Code, vol. 1. c. 92, s. 3.
The clause in question in the act concerning lunatics has not introduced a new rule. Its intention was only to prevent the property of the lunatic from going to the commonwealth; as, at common law, it went to the king. It is, indeed, literally copied from the statute of 17 Edw. II. c. 10; except as to the last clause, which gave the estate pro salute animae, whereas in this country it goes to the relations. Rut here, as well as in England, a previous will is not to be set aside.
3 Bac. (Gwill. edit.) 529, 530.
A different construction would establish the strange position that all persons who may lose their senses by disease are compelled to die intestate, however judicious wills they may have previously made! A man's being overtaken by madness ought no more to operate a revocation, (on the ground that he might have intended to revoke,) than sudden death has such effect. In that case an intention to revoke may be defeated; but inconveniences of this nature cannot be guarded against. All that can be done is to lay down general regulations.
George K. Taylor, on the same side, contended that, this being an appeal from a court of probate, if the will be made out according to the act of assembly, the court must admit it to record; the court of probate having nothing to do with implied revocations: but he observed that future litigation might be prevented if the court's opinion could be obtained upon all the points in dispute.
The will is good as to whatever property may not be conveyed by the deed: for the general residuary clause might operate upon property, afterwards acquired, and therefore not conveyed. The court, then, should say, " Let it be recorded; let the executor qualify: if any part has been revoked, the person entitled will not be injured; and others will get that to which they are entitled."
The rule is the same in relation to revocations of wills of personal estate as of real. Let us see, then, whether the deed in this case was a revocation as to either.
Roberts on Wills, 416.
There must be a concurrence of the intention and act, in a subsequent instrument, to operate a revocation of a former: in the same manner as tearing a will is prima facie evidence of revocation, but accidental or unintentional tearing is not a revocation. Therefore, in Onions v. Tyrer, 1 P. Wms. 343, a new will repeating the old totidem verbis was decided not to have the effect of a revocation; and in Harwood v. Goodright, Cowp. 87, a subsequent will, though found by the jury to contain a different disposition from a former, was considered no revocation; the particulars of the difference between the two instruments being unknown.
S. C. 3 Wils. 497, under the style of Goodright v. Harwood.
Such is the doctrine as to express revocations; and it equally applies to such as are implied.
Mr. Leigh and myself agree in the law, that a conveyance of the whole estate is an implied revocation; but we differ as to the question of fact, whether the deed in this case conveyed all the estate. It clearly was but a conveyance for the life of the grantor. Suppose, in the body of the deed, it had been, " To them and their heirs for ever, during my life, and no longer," would not the estate conveyed have been for life merely? And is not the effect the same where there is a condition or defeasance limiting the duration of the deeds to the party's life? For the court must construe it all together; and, if this be done, what is it but a lease of her lands, and hire of her slaves, for her life? If it ever was a grant of the whole interest in either, at what time was it so? Before the concluding clause was added? Surely not; because then the deed was not signed; and when sealed and acknowledged, was it not together with the limitation?
It may be said that a deed is to be taken most strongly against the grantor. Agreed; when the court is reduced to that melancholy alternative. But there is no intricacy or ambiguity in the language of this deed. The trustees could not claim the estate to them and their heirs, in opposition to the defeasance.
There never was, for a single moment, a devestment of all her estate, right and interest; in which respect this case differs from that of Goodtitle v. Otway, 7 T. R. 399, and Lord Lincoln's Case, 1 Eq. Cas. Abr. 411. There was no defeasance on the face of the deed in either of those cases; the first of which comes nearest to the present, of any cited by Mr. Leigh. As the court, I trust, will not be disposed to extend the doctrine of revocations farther than it has gone, they will decide that there was no revocation here.
2d. As to the operation of the act of assembly concerning lunatics, all the English authorities are, that subsequent lunacy shall not revoke a will. And those authorities apply here, because our act is copied from the English statute, except the last clause. But the act itself removes every difficulty; for it does not say that the lands and chattels shall be distributed as if the lunatic had died intestate, (so as to abrogate any will which he may have made,) but it merely refers to the act of descents. Now the act of descents, in its terms, provides for the distribution in the manner therein directed, in case of intestacy; but not where there is a will.
Roberts, 31, et seq.
Wickham, on the same side. It appears strange to me that in this, as a court of probate, the point about implied revocation should have been made, in this case. An implied revocation of the whole will may be considered by the court of probate. But the case is otherwise with respect to implied revocations of particular bequests. According to the case of Beard v. Beard, 3 Atk. 73, even " though all the legacies be revoked, yet, the executor continuing, the will must be proved, and he becomes a trustee for the next of kin." All Mr. Leigh's cases are of wills which had been admitted to probate.
Wilcox v. Rootes, 1 Wash. (VA) 141, and Yerby v. Yerby, 3 Call, 339
On the merits, whether the will was revoked, or not, the English authorities, I admit, are not to be departed from. But they are founded on the technical construction of the statute of wills; and, if not, do not apply to this case. Mr. Leigh's premises, that all the interest was parted with by the deed, are clearly not founded in law. Two erroneous positions are the substratum of his whole argument; first, that an estate to A. and his heirs for the life of B. is a fee-simple; and, secondly, that a like estate for 500 years, though carved out of the fee-simple, is the whole estate. An estate pur autre vie, or for any number of years, is not even a base fee; though conveyed for the limited time to the donees and their heirs.
2 Bl. Com. 120, Ibid. 358, as to estates pur autre vie, and Stirling v. Lidyard, 3 Atk. 199, as to leases for years.
This fallacy, therefore, being removed, the superstructure falls to the ground; for there is not a dictum to show that, where a part only of the estate is conveyed by a subsequent deed, the will is not good for the balance; and the doctrine laid down in Brydges v. The Duchess of Chandos, 2 Ves. jun. 428, is express that, in such case, the will is good pro tanto.
But, even if the question as to a devise of land were against us, the rule would be otherwise in relation to ademption of legacies, which depends altogether upon the intention of the testator, according to the circumstances of each case. And it should be remembered that the parties contending in this cause are interested only in the slaves. Ned Hughes, the devisee of the land, is not a party.
1 Roper on Legacies, 29; Hambling v. Lister, Amb. 401; Coleman v. Coleman, 2 Ves. jun. 639.
Another point, also, is in itself conclusive in our favour, viz. that parol evidence is admissible to rebut an implied revocation.
Brady v. Cubitt, Doug. 31.
As to the question upon the commission of lunacy, the act of assembly concerning lunatics ought not to be construed as repealing the 3d section of the act concerning wills. Both laws took effect on the same day, (the 1st of October, 1793,) by virtue of the suspending act, passed December 28, 1792; and both, being in pari materia, should be considered together. No more violence would be done by interpolating the words " in case of intestacy," after the word " distributed" in the 17th section of the act concerning lunatics, (for the purpose of effectuating the obvious intention of the legislature,) than was done in the case of Browne v. Turberville, 2 Call, 398, by interpolating the words " in case of an infant," in the 7th section of the act of descents.
Rev. Code, vol. 1, c. 120, s. 17.
Ibid. c. 92.
Ibid. c. 150.
Botts, in reply. As to the parol proof of Ann Hughes's declarations, that she did not intend to revoke her will; such proof is admissible to repel, or fortify, presumptions arising, 1. From marriage and birth of a child; 2. From cancelling, defacing, tearing, obliterating or burning the will; 3. From imperfect memoranda which may have been made with, or without, the testator's intent; 4. Or, from any other presumptive facts. But the import and effect of words in a deed cannot be contradicted, explained or controlled by such proof. There is no case or dictum for it; and the general rule is expressly against it. Mr. Taylor knew this, and therefore did not contend for the doctrine.
Wilcox v. Rootes, 1 Wash. (VA) 141, and Yerby v. Yerby, 3 Call, 334.
Brady v. Cubitt, Doug. 31; Burtenshaw v. Gilbert, Cowp. 53.
Cogbill v. Cogbill, 2 Hen. & M. 467.
But the revocation depends not on intent, but a rule of law; , and the rule itself is based on twenty-four concurring cases without one contradicting.
1 Saunc. 277, note 4, Pow. on Dev. 565, 580-583, 593, 605; 7 T. R. 415, 420; 2 Vez. sen. 419.
See Rob. on Wills, 294.
The rule is admitted to be binding and conclusive where the deed conveys the whole estate. But it is objected that, in this case, the deed is only for a life estate. According to the rules of construction of deeds, the court is to reconcile the different parts, if possible, but, if there be two clauses totally repugnant, the first shall be received, and the latter rejected; keeping also in view the maxim that the deed is to be taken most strongly against the grantor.
2 Tuck. Bl. 380; Co. Litt. 146, a; Ibid. 112, Hardres, 94.
Applying these rules to the present case, it is to be observed that the conveyance is of all the estate to the trustees, their heirs and assigns (not during the life of Ann Hughes, but) " forever; " to be held by them " forever; " and she warrants to them " forever." This important word " forever" has not been noticed by the counsel for the appellee. It is three times repeated, is stubborn and inflexible, and its empire over the deed cannot be destroyed but by a violence reaching to the heart of that instrument.
The latter clause is, therefore, irreconcilable with the former, and must be rejected; especially since this construction is most strongly against the grantor. In case of a mortgage, the proviso is that, on payment of the money, every thing is to be void; yet, at law, the fee is in the mortgagee from the moment of execution, even before payment; and a release is necessary to reconvey it; though in the different parts of a mortgage there is no repugnancy. " I give to A. a tract of land forever, in case I do not pay him a sum of money by a certain day; and if I do pay it, then I do not give him the land," is sense, and common to mortgages: but " I give to A. forever, to have for life," is a contradiction in terms. The argument is stronger, then, for vesting the fee-simple in the trustees, under this deed, than in the case of a mortgage.
Pow. on Mortg. 66.
It is said that the court of probate is to consider express revocations only. But according to the authorities, its powers are certainly more extensive. It is also said that some pittance, not comprehended in the deed, might have passed by the will: but she conveyed all by the deed; was bedridden until her death; and it is not probable that, after executing the deed, she acquired any property.
Bates v. Holman, 3 Hen. & M. 527; Wilcox v. Rootes, 1 Wash. (VA) 141; Yerby v. Yerby, 3 Call, 339.
But " the will should be recorded to give validity to the appointment of the executor!" The gentlemen are welcome to this fish out of the water, this general without an army, this executor of a will without any will to execute! But in Wilcox v. Rootes, 1 Wash. (VA) 141, the court rejected the office, with the will, though the point was made; and, in that case, the marriage and birth of a child furnished no presumption of revocation of the executor's office.
If the will be not revoked as to one thing, while it is as to another, it ought to be recorded only for the purpose for which it is good; for, if admitted generally, it is conclusive as to every part, unless set aside by bill in equity; and those who contested the probate cannot be received, afterwards, to file a bill.
Mr. Wickham was the only counsel who said there was a distinction, between the two species of property, with respect to the effect of a revocation. The cases referred to by Mr. Leigh related not to land only, but personal property; for example, Rudstone v. Anderson, 2 Vez. sen. 418, and Hone v. Medcraft, 1 Bro. Ch. Rep. 264. The court, in both those cases, considered personal estate as governed, in this respect, by the same rules as real.
But in this case, if the deed revoked the first will, as to land only, the revocation was extended to personals by the second will. The act of assembly only requires a subsequent will to be " in writing," to make it effectual to revoke a former; not that it shall be proved by two witnesses. The testimony is, indeed, contradictory as to the sanity of the testatrix at the time of making the second will. Seay and Ford, the two subscribing witnesses, differ on this point; but Seay is most to be relied upon, since he declares himself to have been more intimately acquainted with Mrs. Hughes, and therefore better qualified to form a judgment on the subject.
Rev. Code, vol. 1, c. 92, s. 7, p. 161.
Wickham. Ford proves that she had lucid intervals: he was called in to write the will, and had the best opportunity of knowing the state of her mind at the time. He says, too, it was not her intention to revoke the former will. The case of Cogbill v. Cogbill, 2 Hen. & M. 467, proves that a subsequent will may be made without revoking a former.
Botts. The second will ought certainly to be produced to clear up this point.
Cur. adv. vult.
The president pronounced the opinion of the court.
OPINION
Tuesday, June 25th. The president pronounced the opinion of the court, that the judgment, admitting the will to record, was correct, and should be affirmed.
[*]For monographic note on Wills, see end of case.