I concur in the conclusion reached by Justice Wilbur that there is insufficient proof of the revocation of the first will.
I am not satisfied, however, that an instrument purporting to be a subsequent will and containing apt language showing a present revocation of former wills may not be offered in evidence as independent proof of such revocation, and when lost or destroyed, its terms of revocation be proved by a single competent witness.
But I think that such an instrument, executed for the concurrent purposes of creating a new will and revoking an old one, is subject to a different construction as to its revoking clause than obtains in the interpretation of an instrument executed solely to revoke a former will.
It is held by many authorities, a number of which are cited in Justice Wilbur's opinion, that where a testator couples *Page 787 the revocation of former wills with the publication of a new one, he declares his intention not to die intestate, and there is a strong implication that he only intends the act of revocation to take effect if the new will becomes operative; and it has, therefore, been frequently held that it is only after the subsequent will has been admitted to probate that it can be used as evidence of revocation of former wills. (Stickney v. Hammond, 138 Mass. 116; Peck's Appeal,50 Conn. 562, [47 Am. Rep. 685]; Reid v. Borland, 14 Mass. 208;Laughton v. Atkins, 1 Pick. (Mass.) 535; Wallis v. Wallis,114 Mass. 510.)
But, conceding that the contents of such revoking will, though lost or destroyed and not susceptible of proof as a will by a single witness, can be established as to a revocation of former wills by one competent witness, the whole contents and purpose of the instrument must be considered in determining whether it effects such revocation.
In the present instance, Mrs. Thompson's second will was practically identical with the first in its disposition of her estate, and amounted to little more than a republication of the earlier will. It did contain express words of revocation of former wills, but it would be a very unjust and unreasonable construction of these words of revocation to hold that they were intended, in the event that this second will should fail of admission to probate, to defeat her twice declared intention that substantially all her property should go to her sister.
In Wilbourn v. Shell, 59 Miss. 205, [42 Am. Rep. 363], the testator, in order to correct the spelling in his olographic will already executed, had it copied and attempted to execute the copy as a will, and destroyed the original. The court says: "From a consideration of all the facts in evidence, we are satisfied the testator destroyed his holographic will, under the belief that the copy thereof executed by him was a valid will, and not with the intention of dying intestate as to his lands. . . . Being inefficient because of the want of attestation, a revocation of the prior will, made by the testator under a belief in its validity, is conditional and not absolute, and the condition having failed, the original is in law still the existing will of the testator, and is entitled to probate." *Page 788
Redfield on Evidence states the doctrine to similar effect: "It is only where a testator revokes a former will, upon the supposition that he has executed a subsequent valid will, which proves invalid, that the act of revocation is held incomplete." (1 Redfield on Wills, *308.) "Where the testator destroyed his will, believing it had already been revoked by a later will, which proved to be invalid and there was no other evidence of his intent except his declaration made at the time, that it was no use to keep it, as he had another, it was held the will was not revoked." (Redfield on Wills, *330.) In Stickney v.Hammond, 138 Mass. 116, the court says: "The testator manifestly had no intention to revoke the will of June, 1877, except as he at the same time substituted therefor the instrument of later date, which differed from it only in a purely secondary matter."
So, here, Mrs. Thompson undoubtedly had no purpose or intent to destroy the testamentary effect of her former will except on the condition that the later will would become effective. Therefore, whether the evidence as to the contents of this second will is excluded or admitted, there is insufficient proof that the first will was revoked.
If this conclusion is sound, as the majority of the justices concede, I see no need for this court to go further in its ruling on this appeal. The learned and persuasive arguments of the conflicting opinions filed herein but emphasize the intricacies of the subject and lead me to adopt the prudent course suggested in the quaint text of Swinburne, in his work on Wills, who, three centuries ago, found himself in deep water in trying to reconcile the accumulated learning of that day on this subject. On page 977 of the seventh edition of his work he is quoted as saying:
"Surely this question, especially concerning the manner of mention or revocation to be made in the Second Testament, is very difficult, and such, as in the Answeing whereof, the Writers do fight among themselves mightily, and do contradict one another very strongly, so that the Victory is very doubtful, and very hard it is to know whether Opinion is truer, or more commonly received. Others, labouring to reconcile these Contradictions, and to pacify these Contentions, have waded so for fine and dainty Distinctions, that they seem to swim up and down, and to float hither and thither, I know not whither, in a deep and bottomless Sea *Page 789 of intricate and confused Divisions: So that if a Man would adventure to follow them to the End of their Voyage, he might well doubt whether ever he should obtain any Haven or safe Landing. Wherefore, for mine own part I thought to wade no further from the Shore than I should find fast Footing, and where I might be within the Reader's Reach."