case_cite">2 U.S. 266

2 Dall. 266

1 L.Ed. 375

Boudinot, et. al. Executors
v.
Bradford*

Supreme Court of Pennsylvania

December Term, 1796

This was a feigned issue, directed by the Register, &c. of Philadelphia, to try, whether a Will dated the 27th April 1788, and republished on the 18th of October ensuing, in which the plaintiffs were named executors, was the last will of Wm. Bradford, Esquire, the deceased brother of the defendant, who claimed as in a case of intestacy. In the course of the trial, the following points were ruled.

I. The execution of the Will having been proved, the defendant's counsel offered Dr. Rush as a witness, to testify, that the deceased, during his last illness, had said, that he had destroyed his will; and that meaning to die intestate, he had signed Promissory Notes, in favor of some of the members of his family, for whom he wished to make a particular provision. It was, likewise, stated, that the defendant intended further to shew, that long subsequent to the Will in question (which it was suggested had been forgotten) the defendant had made and destroyed another will, while in the perfect possession of his reason; so that his declarations had become important, to manifest, whether, by destroying the second will, he intended to revive the first, or to die intestate.

The counsel for the plaintiff objected to the admission of the evidence proposed; and relied upon the 6th section of the act of Assembly (1 vol. Dall. Edit. p. 55) which declares, 'that no Will in writing, concerning any goods and chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein, be altered, or changed, by any words, or will, by word of mouth only, except the same be, in the life time of the testator, committed to writing, and, after the writing thereof, read unto the testator, and allowed by him, and proved to be so done by two or more witnesses.' It is attempted, however, to annul a Will regularly proved, and long preserved, without any one formality, that the law prescribes, or common prudence, in relation to so important a concern, would naturally exact. 1 Dall. Rep. 278.

For the defendant, it was answered, that whether the act of cancelling the second will revived the first Will, or not, was the question to be decided; and must depend on the declaration of the party. The evidence offered, respects only the design of cancelling the second Will; which was an act, that might be equivocal in itself, but was capable of being rendered definite in its object, by a cotemporaneous explanation.

By the Court: Whether Mr. Bradford made a second Will, and afterwards cancelled it, are matters of fact, to be substantially and satisfactorily proved to the Jury. Being so proved, another object is contemplated, which, likewise, assumes the nature of a fact, whether by cancelling the second Will, the deceased meant to revive the former instrument, or to die intestate; and we are at a loss to conceive how such a meaning (which it is unreasonable to expect to find in writing) should be ascertained, but by the testimony of witnesses. The evidence, indeed, will not go directly to destroy an existing Will, but, merely to shew, in effect, that the deceased did not intend again to make, or re-establish, a Will, which he had once actually destroyed. The same point arose in Lawson v. Morrison, and was decided in the same way by the High Court of Errors and Appeals.*

Let the witness be qualified.

II. The doctrine of express and implied revocations of Wills, being much discussed during the trial, the Chief Justice, with the concurrence of the other members of the Court, laid down the following positions.

M'Kean, Chief Justice.

1st. Where a second Will is made, containing an express clause of revocation, the preceding Will, though not formally cancelled, is revoked.

2nd. Where a second Will is destroyed, without more, the preceding Will, not having been cancelled, is, generally speaking, ipso facto revived.

3rd. Where a second Will is cancelled, under circumstances that manifest an intention either to revive, or not to revive, the preceding Will, those circumstances must be proved.

4th. The mere act of making a second testament, is a revocation of a preceding testament, in relation to personal estate; the law throwing the personal estate on the executor as a trustee.

III. It was suggested by Ingersoll, that, in England, an executor is entitled in his own right to the residuum of personal estate, undisposed of by the Will; whereas in Pennsylvania, the executor holds it only as trustee for the next of kin.

But, by the Court: There is no such distinction to be found in any Act of Assembly, or judicial determination. The next of kin are only entitled to personal estate, in the case of intestacy; and a man cannot be intestate, who has made an Executor.

The principal point in the cause turned upon the state of Mr. Bradford's mind at the time of cancelling the second Will and declaring his intention to die intestate; and the Jury being of opinion, from the evidence, that he was then in possession of a competent understanding, found a

Verdict for the Defendant.

Ingersoll & R. Stockton (of New-Jersey) for the plaintiff. Lewis, M. Levy, & Tod, for the defendant.

There was a special sitting of the Court after December Term 1796, from the 2nd to the 5th of January 1797, for the trial of this cause.

See post.

How this case has been treated — in progress