Eschbach v. Collins

Yellott, J., delivered the opinion of the Court. The bill of complaint in this cause invokes a judicial construction of the will of John Eschbach, the meaning of which having been rendered ambiguous, obscure, and, in some places, apparently incomprehensible by obliterations made by the testator a number of years subsequent to the date of its execution. The will was originally executed in conformity with the requirements of the statute prescribing the formalities to be observed in making a testamentary disposition of real estate. In the first clause, two of the testator’s sons, Leo Eschbach and John E. Eschbach, are appointed executors, with the usual directions in regard to funeral expenses and the payment of debts.

In the second clause the whole estate, real and personal, is devised and bequeathed to the said Leo and JohnE. Eschbach in trust. The testator then proceeds to declare the nature and purposes of the trust thus created, and the mode and manner in which it shall be executed, with a multitude of provisions not necessary to be here recited, as they involve no questions now presented for adjudication. The corpus of the estate is to be divided into ten equal parts corresponding to the number of the testator’s children.

Leo Eschbach and John E. Eschbach are, each, to take one-tenth, entirely exempted from the operation of the trust, and to be held by them absolutely, or in fee simple. To the other sons, and the daughters, life estates are given with remainders as prescribed by the terms of the will. It becomes important, in the construction of this will, to observe that none of the children of the testator are mentioned by name except Leo and John E. Eschbach. The others are simply designated as sons or daughters. ⁴⁹⁴ After the death of the testator the will was discovered with certain, words written below the signatures of the attesting witnesses.

This writing is somewhat deficient in perspicuity, which is, perhaps, attributable less to the general imperfection of human language than to the peculiarity of the diction employed. It was not there when the will was executed. It has no attestation, hut is supposed to be in the hand-writing of the testator and was signed by him. It is in these words : February 3, '80.

For Good & sown Reason, I arrest John E. Eschbach Name, and Leo Eschbach his Name, the above date, in Good Health and Reason. Signed the above date. John Eschbach. In each clause of the will, wherever the names of Leo Eschbach and John E. Eschhach occur,, a pen has been drawn across, leaving the names legible but the writing partially defaced by the attempted obliterations.

Two important changes in the will result from these erasures. The first is the removal of Leo and John E. Eschbach as executors and trustees. No question here arises for the determination of this Court; the said Leo and John E. having declined to act as executors, and their formal renunciation being embodied in the record. The Circuit Court has also, in the exercise of its jurisdiction, and in conformity with the provisions of the will, appointed trustees, and Leo and John E. Eschbach have admitted and averred in their answer that said trustees have been duly appointed.

But another and more material change has been effected by these erasures. The will, as originally Executed, gave life estates to all the sons except Leo and John E. Eschbach. The erasure of the two names operates to confer estates in fee simple on all the sons. The testator says, in the second clause, “ the shares of my sons Leo and John E. Eschbach to be held ⁴⁹⁵ by each of them, who may survive me, absolutely, and the trust hereby created to cease as respects them, or the one who may survive me.

The shares of my other children to be held for their respective lives,” &c., &c. The testator had other sons besides the two specially mentioned by name. Omit the words erased and it will be seen, at a glance, that all the sons take absolutely, and the words “ my other children ” apply only to the daughters. Again in the concluding portion of this clause the testator says, “ it being also my intention to pass life estates to all my children and descendants of a deceased child, who may take at the time of my death, with the exception that my sons, Leo Eschbach and John E. Eschbach, shall each, if he. survives me, take absolute fee simple estates in their respective shares.” He has erased the names of Leo Eschbach and John E. Eschbach, and this obliteration manifestly creates a fee simple estate in each son, and renders the word “children” applicable only to the daughters.

The first question presented for adjudication is whether a testator can, by the obliteration of certain words in his will, cause the transmutation of a life estate into a fee simple. This is the converse of the proposition presented by the case of Swinton vs. Bailey, 1 Exch. D., 112. There the effect of the obliteration was to dimmish an estate in fee simple and convert it into an estate for life.

Chief Baron "Kelly in the Exchequer held that this could not he done. The judgment of the Exchequer was reversed in the Court of Appeals, Cookbubh, Ch. J., saying: “Although it is a devise in fee simple, I think that is (so far as it is matter of revocation) divisible into two parts, and that the man who has given the larger estate may revoke the gift to that extent, and cut it down to the smaller gift or devise of an estate for life. It may be that you cannot add to the will.” The decision of the Court of Appeals was affirmed in House of Lords, 48 L. J., 57. ⁴⁹⁶ 'The only principle determined in this case was that an ¡•estate might he diminished by the erasure of certain i words, and any general observations, made by Judges, which extended beyond the scope of the question in controversy, could hardly be recognized as establishing a safe precedent even within the jurisdiction where the decisions of that Court must be received as authoritative.

In Larkins, et al. vs. Larkins, et al., 3 Bos. & Pull., 20, Lord Alvanley, Ch. J., said: “If the remaining devisees were to acquire any estate which they had not before, something beyond a mere revocation ivould be necessary.” A careful analysis of either of the English or the Maryland Statute would seem to lead irresistibly to the conclusion that every testamentary act by which property is transmitted should be authenticated in the manner prescribed by the Legislature. A man may devise the whole ■of his estate in fee simple. This is one testamentary act.

He may subsequently change his intention, and, as the fee is susceptible of subdivision, he may determine to give a less estate. This would certainly be another and •a distinct testamentary disposition, and when it is alleged that he has so determined, the adduction of the proper proof is requisite. It is apparent that this proof must be supplied by the production of another will or a codicil properly attested and executed. Hence, it would seem to have formerly been the settled doctrine in England, that “any alteration that amounts to a new devise of the land, requires that the will should be re-executed according to the Statute.” Lovelass on Wills, 349.

The American cases fully recognize this doctrine, and when an attempt has been made by interlineation or obliteration to make a different disposition of the estate, the attempt has been held to be abortive, and the will operated as originally executed. In Jackson vs. Holloway, 7 John., (N. Y.,) 395, a testator having made his will, devising his lands then in possession to his four sons, sub ⁴⁹⁷ sequently acquired other lands which, by the statutes of the State, did not pass by a will executed antecedently to the seisin. He attempted an alteration by erasures and interlineations so as to make the devise extend to all the lands of which he should die seised; and endorsed a memorandum to that effect on the will, stating the alterations which he had made. This memorandum was attested by two witnesses only.

It was held that the erasures and interlineations did not destroy the original devise, but that the alterations, not having been attested by three witnesses could not operate. The Court said: “ The obliterations in the will were made, not with an intent to destroy the devise already made, but to enlarge it, by extending it to lands subsequently acquired. The testator, however, failed in making interlineations and corrections which could operate, from not having the amendments attested according to law. The obliterations cannot therefore destroy the previous devise, for that was not the testator’s intention.” In McPherson vs. Clark, 3 Bradf., 99 , the testator attempted to revoke the devise to his daughter by striking out the words “my children” and inserting “my two sons.” The Court said: “ This insertion is inoperative for want of re-execution and attestation; and the intent failing as to the substitution intended, it must fail likewise as to the revocation intended.

Enough remains on the face of the will to show that the word erased was ‘ children,’ and the will must be so recorded.” In the case of Wolf vs. Bollinger, 62 Ill., 372 , the testator having devised his estate to one person afterwards attempted to transfer it to another. The alteration was made by an interlineation which was not attested in the presence of the testator. The Court said that “for want of a compliance with this statutory requirement, the instrument did not operate as a disposing will. The cancellation was not made with intent to revoke the devise to ⁴⁹⁸ the complainant, simply, hut with intent to substitute in, her stead the defendant; and the ultimate object of substitution having failed of accomplishment, the cancelling, which was done only in the view of, and in order to effect that object, should be esteemed for nothing, and be considered as not having been made absolutely, but only conditionally, upon the attempted substitution being made effectual.

To give it effect under the circumstances, would seem to be to thwart the intention of the testator, and make him intestate when he manifested a contrary intent by his will.” In the case of Bigelow vs. Gillott, 128 Mass., 102 , there' was an entire obliteration of the sixth and thirteenth clauses of the will by ink lines drawn through and across every word constituting those clauses. This was held to be a revocation of these two clauses; leaving intact the other clauses in the will. The Court said: “ He revoked the sixth and thirteenth clauses, and purposely and intelligently left the other provisions^ to stand as his will.” “ The argument, that this view is in conflict with the provisions of law which require that a will disposing of property should be executed in the presence of three witnesses, is not sound. It is true that the act of revocation need not be done in the presence of witnesses; but such act does not dispose of the property.” If this was simply a question of revocation its determination would involve a construction of sec. 302, of Art. 93, of the Maryland Code of General Laws, which prescribes the mode by which a revocation may be effected.

The language of the statute is, “No devise in writing of lands, tenements, or hereditaments, or any clause thereof, shall be revocable ” except in the manner designated. An entire will can thus be revoked, or any clause thereof.. What then is a clause? Does it consist of two or three words which, disjoined from the context and transferred to a separate sheet of paper would be devoid of sense or ⁴⁹⁹ meaning?

Do the mere names of two persons constitute a clause ? Is not a clause always understood to mean one of the subdivisions of a written or printed document? Is the word ever used in any other sense ? Wills are frequently subdivided into a number of clauses.

In one, the testator may provide for the payment of debts; in another, dispose of his personal property; in a third, devise his real estate; in a fourth, leave legacies; and then there may be a residuary clause. Is it not apparent that the statute has reference to one of these subdivisions of a will when the word clause is used in connection with revocation? It is true that a whole will might be revoked, or any clause thereof, by obliterating all the words necessary to give it meaning-. To deprive a will of all meaning would be as efiéciíml a revocation as if it had been consumed to ashen It is manifest that in the construction of this will a question is encountered which involves something more than mere revocation.

The will has not been revoked; it has been altered. II cannot be supposed that when the Legislature uses the word “revocation” it is to be construed to mean mutation. Revocation is certainly not a synonym of alteration. To revoke a testamentary disposition plainly means to annul it; and the revocation of a clause implies the destruction of that clause.

In legal contemplation it ceases to exist, and is as inoperative as if it had never been written. It is not necessary that the words erased should be wholly illegible, but the act of the testator must be such as to clearly indicate an intention to expunge the whole clause, so that it shall no longer constitute a subdivision of the will. But when by the obliteration of certain words a different meaning is imparted, there is not a mere revocation. There is something more than the destruction of