Clapp, Jayne and Schettino. The opinion of the court was delivered by Clapp, S.j.a.d.
This is an action for the probate of the will of Abraham B. Spiegelglass. The question of interest in the case is whether evidence of a statement made by him some time after he had, with a pencil, scratched out certain names in his will, may be admitted to show that at the time he did this, he had no intention to revoke the entire will. The Bergen County Court, Judge Vanderwart sitting, held that these pencil markings were not placed on the instrument animo revocandi , and accordingly it probated the instrument as originally executed. Two infant grandchildren of the testator appeal, contending, through their guardian ad litem , that the will had been revoked.
By the terms of the will, the testator gave his entire estate to his wife and appointed her his executrix, provided she survived him, which she did. The will went on to state that in the event she were to predecease him, his daughter, Harriet Frank, and his son, H. Lawrence Spiegelglass, were to receive his estate and be his executors; and if either child predeceased the testator, his share was to go to his issue.
Lawrence died subsequent to the making of the will but 11 months before the testator's death, leaving surviving his wife, Edith Spiegelglass, and their two infant sons who take this appeal. Nine months after Lawrence's death and two months before the testator's death, the latter delivered the will to his attorney with the above-stated pencil lines and also a pen line upon it, all admittedly placed there by the testator. He had struck pencil lines through Lawrence's name, both in the dispositive and the executorial clauses, and also through the signature of Edith who was one of the witnesses of the will. The only line drawn in ink ran through the words "my son," appearing in one clause, which added nothing to the effect of the will. It would be idle to speculate whether the testator had drawn his pen through these two words definitively and then desisted from making any other definitive changes.
Our statute, N.J.S. 3 A:3-3, in this respect drawn literally from the statute of frauds, 29 Car. 2, c. 3, § 6, declares that a will may be revoked by "burning, canceling, tearing or obliterating the same." We may assume, without deciding the matter or stopping to discuss it, that the pencil and ink lines on the instrument, in particular the line through Edith's signature, a vital part of the will, constitute the revocatory act required by the statute for the revocation of an entire will.
Appellants then insist that since the testator intentionally drew these cancellatory lines upon the instrument, knowing it to be his will, he had ipso facto revoked it, though he had no intention to do so. The case cited for that proposition on the oral argument, In re Bakhaus' Estate , 410 Ill. 578, 102 N.E. 2 d 818 (Sup. Ct. 1951), does not sustain it. On the contrary, the court there refers to an Illinois decision as holding that "even though one of the requisite methods of revocation is followed by the testator, the act is ineffectual unless there is an intent to revoke the will." It is true that in our statute (and the Illinois statute, too), unlike the English Wills Act of 1837, 7 Will. 4 & 1 Vict., c. 26, and the statutes in this country following it, no provision will be found expressly requiring an intention to revoke. Nevertheless the cases have laid such a requirement upon the statutory law; "[t]o effect a revocation there must be a present intent to do so." Heise v. Earle , 134 N.J. Eq. 393, 403 (E. & A. 1944). In accord see Frothingham's Case , 76 N.J. Eq. 331 (E. & A. 1909). There can be no revocation, unless there be both the act demanded by the statute and the intention stated. The law thus bends to the testator's wishes -- and quite properly so, regardless of the difficulties that may be encountered in securing adequate proof of those wishes.
The case then comes down to this: did Abraham B. Spiegelglass, when he struck through Lawrence's name and Edith's signature, in pencil, intend to destroy the validity of the will? The alleged revocatory act may sometimes
furnish very inconclusive evidence as to the testator's purposes, and at other times, it may itself constitute strong proof of an intention to revoke the entire instrument, as, where the testator cuts his signature from the will with a pair of scissors. Smock v. Smock , 11 N.J. Eq. 156, 162 (Ch. 1856); cf. In re White's Will , 25 N.J. Eq. 501, 502 (Prerog. 1874); Board of National Missions of Presbyterian Church v. Sherry , 372 Ill. 272, 23 N.E. 2 d 730, 732 (Sup. Ct. 1939).
Here, however, the act is equivocal, especially when viewed in the light of the surrounding circumstances. Thus, from the testimony of testator's attorney, insofar as it seems to rest, in a substantial way, upon the attorney's own observations (as distinguished from what he was told by the testator), it appears that family difficulties had arisen between the testator, on the one hand, and Edith and in particular one of her sons, on the other hand, and that as a result, after Lawrence's death, the testator had entered into a settlement with her as to certain matters, in which settlement his attorney had participated. Having these circumstances in view, it may without much difficulty be inferred that the lines through Lawrence's name were intended to affect only the contingent gifts to Edith's sons; it could hardly be said that these lines were designed to revoke the entire will. Nor do the lines through the signature of Edith, with whom the testator was displeased, satisfactorily indicate such a design. If his purpose was thereby to revoke the instrument, why had he not stricken the signature of both witnesses? Without going further into the case, one seems to be confronted with doubts as to what was his true intent here.
The burden of proving a revocation rests on those who assert it. What, however, is the measure of their proof? In 1837, the English tightened and recast the terms of the statute of frauds, "burning, canceling, tearing or obliterating," substituting therefor the clause "burning, tearing, or otherwise destroying," 7 Will. 4 & 1 ...