Witter and Wife against Mott and others

Witter and Wife against Mott and others : New-Haven, November, 1816. IN ERROR. THIS was an appeal from a decree of the court of pro-hate for the district of Norwich, approving and ordering to be recorded the will of Samuel Mott, deceased. The will contained devises of the testator’s real estate, and was duly made and attested on the 4th day of June 1812. The deceased afterwards wrote upon said will as follows : “ This will is invalid, March 9th, 1813, as Mr. Luther Smith has agreed that my wife shall claim no right of dower, and bound himself accordingly. Samuel Mott.” The above memorandum was not attested by any subscribing witness, nor was any seal affixed to the signature. The appellees claimed, that the will was not thereby revoked. They also relied upon sundry parol declarations, made by the testator after the 9th day of March 1813, that he considered his will in full force, and intended that his estate should be distributed accordingly. The superior court affirmed the decree of the court of probate; whereupon this writ of error was brought. Soon after the opening of the court, on Thursday afternoon of the first w»@k of the term, Peters, for the defendants in error, offered a plea in abatement, on the ground that the bond given to prSsecute the writ of error was that of one of the plaintiffs only, without surety, as required by stat. lit. 58. s. 7. Sherman, contra, insisted that this plea came too late, and could not be received. He referred to Bulkley v. Starr, 1 Day’s Ca. 552. By the court. The plea cannot be received. Let the cause proceed upon the merits. Sherman, for the plaintiffs in error, contended, 1. That the words “ This rvill is invalid,” in the hand-writing of the deceased, and by him subscribed, amounted to a revocation. In England, previous to the statute of frauds, devises of lands by custom, or pursuant to the statute of wills, (3*2 Hen. 8. c. 1. and 34 A 85 ffni. 8. <*. 5.) were revocable by words only, without writing’. 6 Cruise’s Big. 79. s. 2. Our statute of wills, as lar as it extends, is a transcript of the English .statute of frauds; but our legislature have omitted the 6th section of the latter statute, w hich requires a revocation, by an express declaration, to be in writing, signed by the devisor, in the presence of three witnesses. If this subject had simply been left free from legislative restriction, it would have been sufficient for the present purpose ; but the rejection of the full section by our legislature, after adopting the 5th, shews a positive intention which cannot be disregarded. The maxim, dissolvitur eo ligamine quo ligatur, is not applicable to a devise. in the supreme court of errors, a plea in abatement will not be received after the opening of the court in the afternoon of the third day of the term. A will containing devises of real estate being duly made and attested, the testator afterwards wrote on the back thereof, and subscribed, a declaration in these words : “ This -will is invalid, March 9th, 1813; as Tj, S. has agreed that my wife shall claim no right of dower, and bound himself accordingly Held, that such deck-ration was an express revocation of the will. A writing expressly revoking a will is sufficient for thatpurpose of witnesses. A will once revoked by a written declaration, cannot be set up, or republished, by parol. 2. That a devise which has been revoked, cannot be set up by parol. 6 Cruise’s Big. 119. 120. Peters, for the defendants in error, insisted, 1. That the words relied upon did not amount to an express revocation ; and cited Sutton v. Sutton, Coivp. 812. Larkins ⅝ al. v. Larkins ⅜ al. 3 Bos. Pull. 16. If the testator had intended to make an end of this will, lie would not have preserved it. 2. '.Phut if there was an implied revocation, the subsequent declarations of the testator were properly admitted to rebut it. The will was made originally with all the solemnities required by the statute. If it has since been impaired by any declaration of the testator short of an express revocation, surely other declarations of the same testator may be shewn to explain or contradict, and thus destroy the effect of the former declaration. Hyde v. Hyde, 1 Eq. Ca. Mr. 409. S. C. 7 Bac. Mr. 350. (Wits, edit.) [MAJORITY — Swift, Ch. J.] Swift, Ch. J. The declaration subscribed by the testator on the back of his will — “ This will is invalid,” — is an express revocation of ¡1. It is the same as if he had said, this will is revoked. The reason which be has given cannot change the nature of the act. If he had intended solely to vacate the legacy to his wife, he might have said it in so many words : and it cannot be known but that the agreement made that his wife should have no claim on his estate after ills dealh, was a reason why the whole will should be revoked. Where the words are plain and unequivocal, there is no room for construction or conjecture as to the intent. It is not necessary that the revocation of a will should be attested by three witnesses. It is sufficient to be in writing; and then it may be proved like any* other instrument. When a will has been revoked in due form, by a written declaration, it cannot be set up, or republished, by parol. I am of opinion that the judgment be reversed. In this opinion the other Judges severally concurred, except Goddard, J. who gave no opinion, having been of counsel in the cause. Judgment reversed.