Eschbach v. Collins.

Rep. 32, there was an entire obliteration of the sixth and thirteenth clauses of the will by ink lines drawn through and across every word constituting those clauses. This was held to be a revocation of these two clauses; leaving intact the other clauses in the will. The court said: “He revoked the sixth and thirteenth clauses, and purposely and intelligently left the other provisions to stand as his will." "The argument, that this view is in conflict with the provisions of law which require that a will disposing of property should be executed in the presence of three witnesses, is not sound. It is true that the act of revocation need not be done in the presence of witnesses; but such act does not dispose of the property."

If this was simply a question of revocation its determination would involve a construction of section 302, of article 93, of the Maryland Code of General Laws, which prescribes the mode by which a revocation may be effected. The language of the statute is: "No devise in writing of lands, tenements, or hereditaments, or any clause thereof, shall be revocable "except in the manner designated. An entire will can thus be revoked, or any clause thereof. What then is a clause? Does it consist of two or three words, which disjoined from from the context and transferred to a separate sheet of paper, would be devoid of sense or meaning? Do the mere names of two persons constitute a clause ? Is not a clause always understood to mean one of the subdivisions of a written or printed document? Is the word ever used in any other sense? Wills are frequently subdivided into a number of clauses. In one, the testator may provide for the payment of debts; in another, dispose of his personal property; in a third, devise his real estate; in a fourth, leave legacies; and then there may be a residuary clause. Is it not apparent that the statute has reference to one of these subdivisions of a will when the word clause is used in connection with revocation? It is true that a whole will might be revoked, or any clause thereof, by obliterating all the words necessary to give it meaning. To deprive a will of all meaning would be as effectual a revocation as if it had been consumed to ashes.

It is manifest that in the construction of this will a question is encountered which involves something more than mere revocation. The will has not been revoked; it has been altered. It cannot be supposed that when the legislature uses the word "revocation" it

Eschbach v. Collins.

is to be construed to mean mutation. Revocation is certainly not a synonym of alteration. To revoke a testamentary disposition plainly means to annul it; and the revocation of a clause implies the destruction of that clause. In legal contemplation it ceases to exist, and is as inoperative as if it had never been written. It is not necessary that the words erased should be wholly illegible, but the act of the testator must be such as to clearly indicate an intention to expunge the whole clause, so that it shall no longer constitute a subdivision of the will. But when by the obliteration of certain words a different meaning is imparted, there is not a mere revocation. There is something more than the destruction of that which has been antecedently done. There is a transmutation by which a new clause is created. There is another and a distinct testamentary disposition which must be authenticated by the observance of the statutory requirements. The statute, after designating the modes of revocation, whereby that which has already been done is rendered inoperative by being destroyed, says in language wholly free from ambiguity, and therefore needing no construction, "or unless the same be altered by some other will or codicil in writing, or other writing, signed in the presence of three or four witnesses declaring the same.

There can therefore be no alteration in a testamentary disposition of real estate, except by an observance of the formalities prescribed by the statute. In the will now to be construed the obliterations, so far from operating as a mere revocation by destroying the sense of the context, impart to the clause a different and more important significance. Not only does this become apparent, but it is also evident that the construction, which has been contended for, would be productive of the very evils which the legislature intended to provide against. The obliteration of two or three words might wholly change the character of a devise. As aptly illustrated by learned counsel in argument, if the words were to my son William I give nothing, and give all my estate to my son John," the will could be made to read, without the insertion of any additional words, "to my son William I give all my estate."

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But as already intimated, this record does not present a question of revocation. It is clear that the testator did not contemplate an intestacy. He evidently intended to make a testamentary disposition of the whole of his property. It was supposed by the learned judge of the Circuit Court that he intended by the obliterations to VOL. XLVIII-17

Eschbach v. Collins.

diminish the fee simple estates of Leo and John E. Eschbach to life estates. If such was his purpose, he has attempted to make another and a different devise of one-fifth of his whole property. He transfers the legal title, vested in Leo and John E. Eschbach, to trustees, and carves out of the fee simple equitable life estates with remainders to the children of the life tenants. This is a new will as respects the disposition of the one-fifth of his property. Let it be supposed, by way of illustration, that the entire estate had been devised to Leo in fee simple. How could the testator subsequently vest the legal title in trustees, and create an equitable life estate with remainders? Not certainly by obliterations and interlineations, without attestation or the observance of any of the formalities prescribed by the statute. And is a testamentary disposition of the one-fifth of an estate governed by a different principle? The intention of a testator is only to be regarded when the law sanctions the means which he has adopted to carry it into effect. If what he has done is invalid the intent cannot be respected.

In the formation of a judicial opinion the calm investigating faculty of reason should exercise a paramount control; but in an effort to ascertain, by an inspection of this mutilated will, the real intention of the testator, the aid of imagination seems to become necessary. The aged testator declined to seek the advice and assistance of those whose professional learning and experience would have afforded safe guidance, and relying solely upon his own judgment, failed in the accomplishment of an intent which he has left involved in obscurity.

The true construction of this will is, that the attempted obliterations are inoperative, and that the will must be read just as it was originally written and executed. The renunciation of Leo and John E. Eschbach as executors, and the appointment of the complainants as trustees, by the order of the 27th of September, 1881, from which no appeal has been taken, render a construction of the first clause of the will unnecessary. The trustees, appointed in conformity with a provision in the second clause and by a competent court having jurisdiction of trusts, have the control over the estate given to the trustees by the will as it was executed. The shares of Leo and John E. Eschbach are exempted from the operations of the trust thus created, and are to be held by them absolutely and in fee simple. The learned judge of the Circuit Court, having sought to give effect to the supposed intention of the testator to

Eschbach v. Collins.

diminish the estates of Leo and John E. Eschbach, his decree is in this respect erroneous. But no other error is perceptible in said decree, which must therefore be affirmed in part and reversed in part.

Decree affirmed in part, and reversed in part, and cause remanded. ROBINSON, J., dissented.

ALVEY, C. J. While I concur in the conclusion arrived at by the opinion of the court in this case, I do not concur in the reasoning upon which that conclusion is based. I shall therefore state briefly my views of the case.

That the testator intended to effect a change in the disposition of his estate by the erasures or obliterations made in his will cannot admit of a doubt. The only question is, whether such obliterations can be allowed to have the effect of revocation under the statute.

Section 302, of article 93 of the Code, was literally transcribed from section 6 of the statute of frauds (29 Car. II, ch. 3); and by that section it is declared that "no devise in writing of lands, etc., or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing, or other writing declaring the same, or burning, cancelling., tearing or obliterating the same by the testator himself, or in his presence and by his direction and consent." By the express terms of the statute therefore the testator was at liberty to revoke any devise or any clause thereof contained in his will, by simply cancelling or obliterating the same, without the ceremony of republication. And it is not disputed that the obliterations that appear in the will were made by the testator himself.

The testator left ten children; seven sons and three daughters. By his will he appointed his two sons, John E. and Leo, his executors and trustees. He directed that his estate be divided into ten equal parts or shares, and he gave to all his children life estates. in their respective shares, with remainders over to their children, except his two sons, John E. and Leo, to whom he gave their respective shares absolutely and in fee. Some time after making the will, the testator, for some reason not apparent, erased or obliterated the names of his sons John and Leo wherever they occurred in the will; and the will in that form was admitted to probate. According to the rational effect produced by the

Eschbach v. Collins.

erasures upon the context of the will, the exception made in favor of his two sons would be revoked, and their fee simple estates reduced to life estates, as in the case of his other children. The clauses in the will making the exception in favor of his two sons being in their nature separate and distinct, should, if the revocation pro tanto were effectual, be regarded as entirely expunged from the will, and none of the terms employed in making the exception should be applied to the sons generally of the testator, for that would plainly contravene the whole scheme of the will, and defeat the manifest intent of the testator. In other words, the will should be read as if the exception in favor of the two sons had never been incorporated in it.

Now with respect to the competency of the testator to make revocation of a devise by the simple erasure or obliteration of the name of the devisee, I can entertain no doubt whatever. Nor can

I entertain a doubt of the competency of the testator to revoke pro tanto by simply reducing a larger to a smaller estate, when the act of revocation consists simply in erasing or obliterating the name of the devisee, or the terms by which the larger estate is given. But in all such cases we must have regard to the effect of such revocation upon the rights of other persons who may claim under the will. If the effect of such revocation is to enlarge the estate or interests of other devisees, or to raise new interests or rights under the will, then it is not simply a revocation, but a new devise, which can only be made by re-execution and re-publication of the will. This I take to be well established upon authority.

In the case of Larkins v. Larkins, 3 B. & Pul. 16, a case arising upon the 6th section of the statute of frauds, the testator made a devise of land in due form to three persons as joint tenants in fee, and afterward struck out the name of one of the devisees, without re-execution and re-publication of the will; and it was held, that the erasure would operate as a revocation of the will pro tanto.` Lord ALVANLEY, C. J., said: "Whatever this alteration be, it is not an alteration arising from a new gift, but merely from a revocation. If the remaining devisees were to acquire any estate which they had not before, something beyond a mere revocation would be If therefore the devisees had been tenants in common, necessary. upon the erasure of one name the remaining two would take no more than two-thirds of the estate." The same principle was conceded in the case of Short v. Smith, 4 East, 419.