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David, Hi, it's Cathy. I...
David, Hi, it's Cathy. I spoke to you over the weekend about Connecticut Probate Law. I found two cases, Whitehill vs. Halbing, 98 Conn. 21, the case is on point but not in my favor, but apparently this is the way Connecticut Probate rules, but then James v Marving, 3 Conn. 576, on point and exactly what I need. However, one dissenting Judge, Wheeler, C. J. agrees with James vs. Marvin.
I can send you Whitehill v Halbing but it's quite long, maybe you can pull it up yourself.




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PRIOR HISTORY:
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3 Conn. 576, *; 1821 Conn. LEXIS 17, **

JAMES against MARVIN and others.

[NO NUMBER IN ORIGINAL]

SUPREME COURT OF ERRORS OF CONNECTICUT, FAIRFIELD

3 Conn. 576; 1821 Conn. LEXIS 17


June, 1821, Decided

PRIOR HISTORY: [**1] This was an appeal from a decree of the court of probate, establishing the will of XXXXX XXXXX, deceased, made in April, 1819.

This will was executed and published according to law. In the month of May following, the testator made and published another will, in which there was a clause inserted, expressly revoking all former wills; but he did not cancel or destroy the first will, nor revoke it, in any other way than by making the last-mentioned will containing such clause of revocation. In the month of June following, he voluntarily burnt and destroyed his second will, and died, leaving his first will in its original state. A case containing these facts, was reserved for the consideration and advice of all the Judges,

DISPOSITION: Decree of probate disaffirmed.
CASE SUMMARY

PROCEDURAL POSTURE: Appellants sought review of a decision of a court of probate (Connecticut), which established the validity of a will in favor of appellees in an action brought by appellees for approval of the will.

OVERVIEW: A testator executed a valid will. Thereafter, the testator executed a second will the purported to revoke all former wills. The first will was not physically destroyed. The testator then voluntarily burned and destroyed the second will. The testator died with his first will in its original state. Appellees contended that the destruction of the second will revived the first will. The probate court held in favor of appellees. On appeal, the court disaffirmed the probate court's judgment. The court stated that the express revocation in the second will was absolute and did not depend on the destruction of the first will. The court stated that the first will could have been revived by republication; however, no such act was done. The court rejected the precedent cited by appellees as inapplicable. The court concluded that the first will was of no legal validity because it was expressly revoked and was never revived by republication.

OUTCOME: The court disaffirmed the decree of the probate court.


CORE TERMS: express revocation, revocation, revoking, devise, instantaneously, destroyed, revived, revoke, deed, destruction, afterwards, cancelled, testator, revoked

LexisNexis® Headnotes Hide Headnotes

Estate, Gift & Trust Law > Will Contests > Revocation > Dissolution & Divorce
HN1
An express revocation, is a positive act of the party, which operates, by its own proper force, without being at all dependent on the consummation of the will in which it is found, and absolutely annuls all precedent devises.

Estate, Gift & Trust Law > Will Contests > Revocation > General Overview
Estate, Gift & Trust Law > Will Contests > Testamentary Formalities > General Overview
HN2
No will can operate to revoke a former will, although it contain a clause of express revocation, unless it be executed with all good and legal solemnities.


HEADNOTES

Where a person having made a will, afterwards made another will, containing a clause expressly revoking the former will; after which he destroyed the second will, and died, leaving the former will uncancelled; it was held, that such clause, proprio vigore, operated instantaneously, to effect a revocation; and that, consequently, the destruction of the second will did not set up the former one.

COUNSEL: Sherman and Bissell, for the appellants, contended, That the first will was not set up, by the destruction of the second will; because the clause in the second will, expressly revoking the first, was a substantive act, operating instantly to render the first will incapable of taking effect, otherwise than as a new will, by force of a re-publication. Pow. Dev. 551., Burtenshaw v. Gilbert, Cowp. 49., Weed v. Hanford, cor. superior [**2] court, Fairfield county. They distinguished between an express and an implied revocation; admitting, that a second will revoking the first by implication only, if it failed of taking effect as a will, could have no operation at all. Goodright d. Glazier v. Glazier, 4 Burr. 2512.

N Smith and Sherwood, for the appellees, contended, That the second will was ambulatory until the death of the person making it, whether it contained an express clause of revocation or not. No will begins to operate until the death of the testator. Express and implied revocations in a subsequent will, are alike declarations of an intention to revoke; and the destruction of the subsequent will, in each case, before it has taken effect as a will, puts that intention out of the way, so that the first will, at the death of the testator, is left upon the same footing as when it was first made. A contrary doctrine would involve this absurdity, that after the deliberate destruction of a will, by the person who made it, there would still remain one clause of it in full force. Such a position is no less repugnant to decided cases, than to principle and common sense. Onions v. Tyrer, 1 P. Wms. 343., Goodright d. [**3] Glazier v. Glazier, 4 Burr. 2512., Pow. Dev. 631., & seq.

JUDGES: STEPHEN TITUS HOSMER, Ch. J.

OPINION BY: HOSMER

OPINION
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PRIOR HISTORY:
DISPOSITION:
CASE SUMMARY
PROCEDURAL POSTURE:
OVERVIEW:
OUTCOME:
CORE TERMS:
LexisNexis® Headnotes
HEADNOTES
COUNSEL:
JUDGES:
OPINION BY:
OPINION

SHEPARD'S®


3 Conn. 576, *; 1821 Conn. LEXIS 17, **

JAMES against MARVIN and others.

[NO NUMBER IN ORIGINAL]

SUPREME COURT OF ERRORS OF CONNECTICUT, FAIRFIELD

3 Conn. 576; 1821 Conn. LEXIS 17


June, 1821, Decided

PRIOR HISTORY: [**1] This was an appeal from a decree of the court of probate, establishing the will of XXXXX XXXXX, deceased, made in April, 1819.

This will was executed and published according to law. In the month of May following, the testator made and published another will, in which there was a clause inserted, expressly revoking all former wills; but he did not cancel or destroy the first will, nor revoke it, in any other way than by making the last-mentioned will containing such clause of revocation. In the month of June following, he voluntarily burnt and destroyed his second will, and died, leaving his first will in its original state. A case containing these facts, was reserved for the consideration and advice of all the Judges,

DISPOSITION: Decree of probate disaffirmed.
CASE SUMMARY

PROCEDURAL POSTURE: Appellants sought review of a decision of a court of probate (Connecticut), which established the validity of a will in favor of appellees in an action brought by appellees for approval of the will.

OVERVIEW: A testator executed a valid will. Thereafter, the testator executed a second will the purported to revoke all former wills. The first will was not physically destroyed. The testator then voluntarily burned and destroyed the second will. The testator died with his first will in its original state. Appellees contended that the destruction of the second will revived the first will. The probate court held in favor of appellees. On appeal, the court disaffirmed the probate court's judgment. The court stated that the express revocation in the second will was absolute and did not depend on the destruction of the first will. The court stated that the first will could have been revived by republication; however, no such act was done. The court rejected the precedent cited by appellees as inapplicable. The court concluded that the first will was of no legal validity because it was expressly revoked and was never revived by republication.

OUTCOME: The court disaffirmed the decree of the probate court.


CORE TERMS: express revocation, revocation, revoking, devise, instantaneously, destroyed, revived, revoke, deed, destruction, afterwards, cancelled, testator, revoked

LexisNexis® Headnotes Hide Headnotes

Estate, Gift & Trust Law > Will Contests > Revocation > Dissolution & Divorce
HN1
An express revocation, is a positive act of the party, which operates, by its own proper force, without being at all dependent on the consummation of the will in which it is found, and absolutely annuls all precedent devises.

Estate, Gift & Trust Law > Will Contests > Revocation > General Overview
Estate, Gift & Trust Law > Will Contests > Testamentary Formalities > General Overview
HN2
No will can operate to revoke a former will, although it contain a clause of express revocation, unless it be executed with all good and legal solemnities.


HEADNOTES

Where a person having made a will, afterwards made another will, containing a clause expressly revoking the former will; after which he destroyed the second will, and died, leaving the former will uncancelled; it was held, that such clause, proprio vigore, operated instantaneously, to effect a revocation; and that, consequently, the destruction of the second will did not set up the former one.

COUNSEL: Sherman and Bissell, for the appellants, contended, That the first will was not set up, by the destruction of the second will; because the clause in the second will, expressly revoking the first, was a substantive act, operating instantly to render the first will incapable of taking effect, otherwise than as a new will, by force of a re-publication. Pow. Dev. 551., Burtenshaw v. Gilbert, Cowp. 49., Weed v. Hanford, cor. superior [**2] court, Fairfield county. They distinguished between an express and an implied revocation; admitting, that a second will revoking the first by implication only, if it failed of taking effect as a will, could have no operation at all. Goodright d. Glazier v. Glazier, 4 Burr. 2512.

N Smith and Sherwood, for the appellees, contended, That the second will was ambulatory until the death of the person making it, whether it contained an express clause of revocation or not. No will begins to operate until the death of the testator. Express and implied revocations in a subsequent will, are alike declarations of an intention to revoke; and the destruction of the subsequent will, in each case, before it has taken effect as a will, puts that intention out of the way, so that the first will, at the death of the testator, is left upon the same footing as when it was first made. A contrary doctrine would involve this absurdity, that after the deliberate destruction of a will, by the person who made it, there would still remain one clause of it in full force. Such a position is no less repugnant to decided cases, than to principle and common sense. Onions v. Tyrer, 1 P. Wms. 343., Goodright d. [**3] Glazier v. Glazier, 4 Burr. 2512., Pow. Dev. 631., & seq.

JUDGES: STEPHEN TITUS HOSMER, Ch. J.

OPINION BY: HOSMER
I feel this is exactly what I need however, Whitehill vs. Habling was decided (against my interest) on 11 August 1922.

Can you advise me once again? Thanks, Cathy
Submitted: 8 years ago.Category: Estate Law
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6/24/2010
Estate Lawyer: David L, Attorney replied 8 years ago
David L
David L, Attorney
Category: Estate Law
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Hi Cathy. I will take a look at these cases and get back to you.
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Customer reply replied 8 years ago
Thank you David.
Estate Lawyer: David L, Attorney replied 8 years ago

This is very interesting stuff. I've looked at your cases. The James v. Marvin case was earlier and was essentially replaced by the Whitehill holding. Both these cases are from the late 1800's and early 1900's. I'm trying to track them forward to see if there is any recent discussion on this issue.

 

Very interesting stuff - I'll be back in touch soon.

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Customer reply replied 8 years ago

Very interesting indeed. I don't know how to track them forward, plus it's very costly for me to pull a case on Lexis. It seems very odd that there wouldn't be more recent case law.

Also, in the 6th paragraph of the case (Whitehill)

"The testatrix by executing the second will evinced no intention to become intestate..but rather a contrary intention..." etc., this is not the case with my uncle. He stated that he was choosing to die intestate and "let it go to my heirs" for many reasons I haven't gotten into thus far. But also, when he went to the attorney to do the 2008 will, he brought with him the 1990 will, written on and cut up, thus showing his intent to revoke. The attorney testified to the judge that she thought that act in itself proved the revocation of that 1990 will.

My question is whether you think I can prevail by any stretch with this case law (and hopefully with a more current one.)! The fact of the matter is what did my uncle want? The judge just wants a will, any will. This is silly as you had said.

 

One more thing, not that I don't think you're worth it, but can you tell me why I was charged (the second time) before I received your answer? I was charged thirty dollars on the 24th. Just so I know.

Customer reply replied 8 years ago

Hi David, do you still need more time? I've been anticipating an answer, hope to hear from you soon.

Estate Lawyer: David L, Attorney replied 8 years ago
Hi Cathy. This research will take some time. I also practice law full-time. It will probably have to wait until I have some time this weekend to take another look. Thanks for your patience.
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Customer reply replied 8 years ago
Just checking in. Thanks so much
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