Opinion
No. 28,850.
Filed November 8, 1951.
1. WILLS — Nature and Extent of Testamentary Power — Right To Transmit by Devise — Created by Statute — State May Limit Right and Provide Mode of Execution. — In Indiana the right to dispose of property by will was created by statute and the manner in which a will is executed is wholly governed by statute; therefore the state may limit the right and provide the method of the execution of a will as it may see fit. Burns' 1933, § 7-201. p. 50.
2. WILLS — Requisites and Validity — Cancellation, Obliteration and Alteration — Evidence — Presumptions — No Presumption Testator Changed Disposition — No Change Presumed. — After a will has been duly and properly executed, there is no presumption that the testator later changed his mind as to the disposition of his property, but a contrary presumption prevails until overcome by competent evidence of probative value. p. 50.
3. WILLS — Requisites and Validity — Cancellation, Obliteration and Alteration — Evidence — Weight and Sufficiency — Presumptions — Essential Facts Cannot Be Presumed. — In an action for a declaratory judgment with respect to a will, the evidence, which showed that the name of one of three beneficiaries in a will had been inked out, but failed to show that the testator had possession of the will at any time between execution and probate, was insufficient to establish that the obliteration was the act of the testator, and this lack of essential evidence cannot be supplied by any presumption. p. 50.
4. WILLS — Requisites and Validity — Revocation — Partial Revocation — Must Comply With Statutory Safeguards. — An instrument which removed one of three persons' names as beneficiaries and gave his share previously alloted by a will to the other two, constitutes not only a partial revocation of the will, but a remaking of the whole, and, not being in compliance with the statutory safeguards, is of no force and effect. Burns' 1933, § 7-201. p. 50.
5. WILLS — Requisites and Validity — Revocation — Statutory Modes of Revocation. — In Indiana the revocation of a will in whole or in part is entirely governed by a statute, which requires that, in order to effect a valid revocation, the testator or some other person in his presence and by his direction, with intent to revoke, must either destroy or mutilate the will or execute another writing for that purpose, signed, subscribed and attested as required for the original execution of wills. Burns' 1933, §§ 7-201, 7-301. p. 51.
6. WILLS — Requisites and Validity — Revocation — Statutory Provisions — Must Be Attested by Two Witnesses. — In an action to obtain a declaratory judgment with respect to a will, an instrument signed by the testator which attempted to remove one of three persons as beneficiaries and give his previously allotted share to the other two was ineffective for such purpose because it was not attested by two witnesses as required by statute. Burns' 1933, § 7-201. p. 51.
7. WILLS — Requisites and Validity — Revocation — Essentials for Valid Revocation. — In order to constitute a valid revocation the intention to revoke and the act manifesting the intention must concur. p. 51.
8. WILLS — Action — Revocation — Evidence — Weight and Sufficiency — Insufficient To Show Intention To Revoke. — In an action to obtain a declaratory judgment with respect to a will, the evidence which showed that the name of one of three beneficiaries in a will had been inked out, was in and of itself insufficient either to make a prima facie showing of intent to revoke the will in whole or in part or that this mutilation was done by the testator, or by another person in his presence and by his direction, to effect such an intention, and this lack of evidence cannot be supplied by presumptions or inferences. p. 52.
9. EVIDENCE — Presumptions — Facts Must Be Established by Evidence or Proper Inferences. — A fact that is in issue must be established by evidence either direct or circumstantial or by inferences properly drawn from such evidence and courts or juries have no right to presume the existence of such facts. p. 52.
10. WILLS — Appeal — Partial Revocation by Mutilation — Evidence — Weight and Sufficiency — No Evidence of Mutilation by Testator — No Question Presented. — In an action to obtain a declaratory judgment with respect to a will, where the name of one of three beneficiaries in a will had been inked out but there was no evidence that such mutilation had been done by the testator, the question whether or not a will may be partially revoked by mutilation was not presented on appeal. p. 53.
From the Marion Probate Court, Dan V. White, Judge.
Action by Lyle R. Morse against Fletcher Trust Company, a corporation, as administrator with will annexed of the Estate of Cheston Lawrence Heath, and others, to obtain a declaratory judgment with respect to the will of Cheston Lawrence Health. From an adverse judgment defendants appeal. (Transferred from the Appellate Court pursuant to § 4-215, Burns' 1946 Replacement.)
Affirmed.
(Superseding the opinion of the Appellate Court reported in 97 N.E.2d 154.)
Carl E. Stilwell, of Indianapolis, for appellants.
Armstrong Gause; Paul B. Hudson and Erle A. Kightlinger, all of Indianapolis, for appellee.
This action was brought by appellee to obtain a declaratory judgment with respect to a will of one Cheston Lawrence Heath who died a resident of Marion County, Indiana, February 11, 1947, leaving an estate composed of both real and personal property.
Appellants — defendants — put the cause at issue by answer under the rules, admitting some of the averments, denying some and pleading no information as to others.
The cause was tried by the court without the intervention of a jury.
The final judgment was for plaintiff, Morse, that he is a beneficiary under the will along with the appellants, Heath and Caulfield, each of whom are to share alike in the distribution of the estate.
The will with its attestation and notorization admitted in evidence as Exhibit A, is as follows:
"Last Will and Testament of Cheston Lawrence Heath
"I, Cheston Lawrence Heath being of sound mind and conscious of the redeeming Love of my Lord, Jesus Christ. Do hereby will and bequeath all my wordly goods both real and personal after all my just debts be paid.
To
"John Allan Heath ____ Son Howard Franklin Caulfield ____ Foster Son x x x x x x x x x x x x x x x x x x x x x x
"To share all and share alike.
"Witness my hand this 20th., day of January 1943
"Cheston L. Heath
"Witness Charles S. Heckingbottom Harry H. Gunkle
OVER x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x
___________________
"STATE OF INDIANA | SS: COUNTY OF MARION |
Subscribed and sworn to before me a notary public in and for said County and State this twentieth day of January, 1943.
Audrey Arline Neese Notary Public
"My commission expires: May 6, 1946" (Seal)
It was stipulated by the parties that the signature to a typewritten statement marked "Exhibit B" is the signature of the decedent, Cheston L. Heath. This exhibit admitted in evidence is as follows:
"ADDITION TO LAST WILL AND TESTIMENT
"Under no condition do I wish the third party Lyle R. Morse
"re un
as states in the will to be included in this will.
"to
"Two and two only I leave the estate. . John A. Heath my Son and Howard Franklin Caulfield my foster son to share all, and each alike.
CHESTON L. HEATH
"Date January 10, 1947."
It was stipulated that a witness to the will, Charles Spencer Heckingbottom, was deceased at the time of the trial. His deposition had been taken by the plaintiff, pursuant to notice, and was produced in evidence at the trial without objection.
It was further stipulated that all matters admitted by the pleadings are to be considered as facts in the case.
It is conclusively shown by the evidence that decedent wrote the will in question with a typewriter in the choir room of the church, brought it into the Sacristy where the witnesses Heckingbottom and Gunkle were and had them sign it as witnesses. At that time it was in the same words and figures as it now appears except where the line is blacked out by ink lines following the line "Howard Franklin Caulfield ____ Foster Son," and were the words: "Lyle R. Morse ____ Foster Son." At the time the will was witnessed by the two attestants, the words were not blacked out. This partial mutilation of the will has occurred since its execution.
There is no evidence and no stipulation in the record indicating where the will was kept from the date of its execution, January 20, 1943, to the time it was offered for probate, February 14, 1947.
There is no evidence in the record as to who wrote the body of Exhibit B, which was admitted in evidence without objection. It was stipulated that the name "Cheston L. Heath" at the bottom of this exhibit was in the handwriting of the testator. There is no evidence or stipulation when this exhibit was signed, other than the typewritten date several lines below the signature. There is no evidence or stipulation as to whether the body of the exhibit or the date was on the paper when the testator's signature was placed thereon. There is neither evidence nor stipulation as to where Exhibit B was found after testator's death, or where it had been kept from the typewritten date thereon until it was presented in evidence. The evidence does show that neither of the attesting witnesses ever had seen Exhibit B until it was presented to them while they were testifying.
Only one question is presented in this proceeding, as follows: Was the will revoked in whole or in part by reason of the attempted mutilation thereof by blacking out the name of appellee as one of the beneficiaries thereof, and the existence of "Exhibit B" in manner and form as admitted in evidence? By its general finding and judgment in favor of appellee-plaintiff the trial court has answered this question in the negative.
In this state the right to dispose of property by will is created by statute, and the manner in which a will shall be executed is wholly governed by statute, Sec. 1. 7-201, Burns' 1933. Consequently the state may limit the right, and provide the method of the execution of a will as it may see fit. Porter v. Union Trust Co. (1915), 182 Ind. 637, 644, 108 N.E. 117, Ann. Cas. 1917D 427; Hertford v. Harned (1916), 185 Ind. 213, 218, 113 N.E. 727; Tinsley v. Carwile (1937), 212 Ind. 675, 679, 10 N.E.2d 597. See also Aldred v. Sylvester (1916), 184 Ind. 542, 547, 111 N.E. 914.
There can be no doubt that the will in question was duly and properly executed when it was witnessed by Heckingbottom and Gunkle on January 20, 1943. Having caused his will to be 2, 3. duly executed on that date there can be no presumption that testator later changed his mind with respect to the disposition of his property as made in the will. The contrary presumption prevails until it is overcome by competent evidence of probative value. There is no evidence that the will was in testator's possession at any time from the date of its execution until the date it was offered for probate, or that he ever had it in his possession after its execution. This absence of essential evidence cannot be supplied by any presumption. Hence there is nothing in the record showing that the act of obliterating the name of appellee as a beneficiary in the will was the act of the testator, unless this is sufficiently shown by Exhibit B.
However, for argument only, assuming that Exhibit B is a genuine document written and signed by the testator, what is its legal effect? If given effect as written, it would remake 4. the will by removing appellee as beneficiary, and giving the share allotted to him by the will, to the appellants, John Allan Heath and Howard Franklin Caulfield. Thus we would have not only the revocation of the will in part, but a remaking of the whole, without any compliance with the safeguards provided by the statute. As heretofore noted this cannot be done. Wright et al. v. Wright (1854), 5 Ind. 389, 390; Pfaffenberger v. Pfaffenberger (1920), 189 Ind. 507, 511, 127 N.E. 766.
In this state the revocation of a will in whole or in part is wholly governed by statute. Sec. 7-301, Burns' 1933. Pfaffenberger v. Pfaffenberger (1920), 189 Ind. 507, 5. 511, 127 N.E. 766, supra; Woolery et al. v. Woolery et al. (1874), 48 Ind. 523, 526; Wright et al. v. Wright (1854), 5 Ind. 389, 390, supra. This statute provides that a written will may not be revoked in whole or in part except in one of two ways mentioned thus: (1) "Unless the testator, or some other person in his presence and by his direction, with intent to revoke, shall destroy or mutilate the same;" (2) "or such testator shall execute other writing for that purpose, signed, subscribed and attested as required in the preceding section." The preceding section referred to is now Sec. 7-201, Burns' 1933. Both sections were enacted in 1852 and are respectively Sections 18 and 19 of Chapter 11, an Act prescribing, among other things, how a will shall be executed and how it shall be revoked. See Vol. 2, Revised Statutes of 1852, page 314.
Exhibit B was not attested by two witnesses as required by Sec. 7-201, which is made a part of Sec. 7-301 providing the two ways by which a will may be revoked. For the reason it was not 6. so attested, it did not revoke the will in whole or in part, or otherwise affect it. This holding is consistent with the cases in Indiana.
A terse statement of the essential of a revocation is 7. expressed by Elliott, J. thus:
"To constitute a valid revocation of a will, two things must concur: 1. The intention to revoke 2. The act manifesting the intention."
Forbing et al. v. Weber (1885), 99 Ind. 588, 589; Woodfill et al. v. Patton et al. (1881), 76 Ind. 575, 579, 40 Am. Rep. 269; Woolery et al. v. Woolery et al. (1874), 48 Ind. 523, 526, supra; Runkle v. Gates (1858), 11 Ind. 95, 99; Pfaffenberger v. Pfaffenberger (1920), 189 Ind. 507, 511, 127 N.E. 766, supra; Tinsley v. Carwile (1937), 212 Ind. 675, 679, 10 N.E.2d 597, supra.
There is not sufficient evidence in the record indicating that the testator ever had an intention to revoke his will in whole or in part. The mere fact that appellee's name as a 8, 9. beneficiary in the will had been inked out or otherwise mutilated when the will was probated is not sufficient in itself to make a prima facie showing of such intention on the part of the testator, nor is such fact, in itself, sufficient to make a prima facie showing that the mutilation was done by testator to effect his intention to revoke the will either in whole or in part. Indeed there is no evidence in the record indicating that this mutilation was done by the testator, or by another "person in his presence and by his direction." As before stated this lack of evidence cannot be supplied by either presumptions or inferences. A fact that is in issue in a case must be established by evidence either direct or circumstantial or by inferences properly drawn from such evidence. But neither courts nor juries have a right to presume the existence of such a fact. Prudential Ins. Co. of America v. VanWey (1945), 223 Ind. 198, 203, 59 N.E.2d 721; Baltimore Ohio R. Co. v. Reyher, Admx. (1939), 216 Ind. 545, 549, 24 N.E.2d 284; Kaiser v. Happel (1941), 219 Ind. 28, 31, 36 N.E.2d 784.
The parties have discussed at length the proposition whether or not a will may be partially revoked by mutilation under the statute cited (7-301, Burns' 1933) in Indiana. For the 10. reasons given we do not think that question is presented in this appeal.
Finding no error in the record the judgment of the trial court is affirmed.
NOTE. — Reported in 101 N.E.2d 658.