Stickney v. Hammond

A testator left two instruments of different dates, each purporting to he his last will, and each containing a clause expressly revoking all wills theretofore made. The two instruments were alike, except that the later one contained a clause exempting the executor from giving sureties on his probate bond. Neither instrument mentioned the widow of the testator. The later instrument was offered for probate, and general notice to all persons interested was published by order of court, and the instrument was admitted to probate by the Probate Court. An appeal was taken to this court by the heirs at law; the executor declined to defend against the appeal, as did the devisees, upon notice being given to them. Thereupon this court passed a decree, reciting the failure of the executor and the devisees to appear and defend, and ordering that the will was not proven and that the appeal be sustained, and reversing the decree of the Probate Court. The prior will was then offered for probate, and the widow offered the later instrument in evidence as a revocatory instrument only. Held,. that it was inadmissible.

Appeal by Mary L. Hammond from a decree of the Probate Court admitting to probate a certain paper writing, dated June 14, 1877, purporting to be the last will and testament of Andrew W. Hammond, as and for such will and testament. Hearing before Morton, C. J., who allowed a bill of exceptions, in substance as follows: It appeared in evidence, and upon the admissions of the parties, that Andrew W. Hammond died in January, 1879, leaving several paper writings purporting to be wills, in all of which Elizabeth W. H. Stickney was named as executrix or co-executrix ; that she presented the latest of said writings, dated September 8, 1877, for probate, which writing contained a provision revoking all prior wills; that the usual general notice to all persons interested was published by order of said court; that the appellant in this case did not appear for or against the probate of said will, which was allowed by the Probate Court to be the last will and testament of Andrew W. Hammond; that thereupon several of the heirs at law of Andrew W. Hammond, not including the present appellant, his widow, duly appealed from said decree of the Probate Court to this court, the reasons of appeal being as follows : “ First. That the said instrument was not duly executed according to law as and for the last will and testament of the said Andrew W. Hammond. “ Second. That at the time of executing the said instrument the said Andrew W. Hammond was not of sound and disposing mind and memory. “ Third. That the said alleged instrument was procured to be made and executed by the undue, improper, and unlawful influence of his daughter, Elizabeth W. H. Stickney, or some other person.” The appeal was duly entered, and remained in this court until November term, 1881, when the same came up for trial, and the executrix, being in Europe, through her counsel declined further to defend against said appeal; whereupon the court ordered notice to all devisees under said will to appear and defend against said appeal and to set up said will, which notice was duly served upon all said devisees, and the case was continued, by order of the court, to the then next term of said court, namely, April term, 1882; and at said April term, neither the executrix nor either of the devisees under the will appearing to defend against said appeal and to set up the will, all the devisees being represented in court, they each and all declining so to do, and no person appearing to defend against said appeal and to set up said will, the court passed the following order and decree : “ It now appearing to the court that the executrix named in said will declines further to defend against said appeal, and all the devisees named therein having been notified to appear and defend against said appeal and to set up said will, and all failing to appear, it is ordered and decreed by the court that said will is not proven, and said appeal is sustained, and the parties are hence dismissed, with costs for the appellants to be paid out of the estate in controversy, and that the decree of the Probate Court admitting the alleged will of Andrew W. Hammond to probate be reversed, and the case remitted to said Probate Court for further proceedings.” It further appeared in evidence, that Andrew W. Hammond purposed to have a codicil added to the paper writing dated June 14, 1877, exempting the person therein named as executrix from giving sureties on her probate bond as such; and that the person to whom he applied for that purpose, and who wrote the paper dated June 14, 1877, preferred to copy the writing entire, with only the change suggested, and did so, making the paper writing dated September 8, 1877. The appellant was not mentioned in either instrument. The appellant produced the paper writing dated September 8, 1877, and offered the same as a revocatory instrument only; and offered to prove that Andrew W. Hammond signed said writing, that the same was attested by three competent subscribing witnesses, and that said writing was signed and executed in the same manner as is required in case of a will. But the judge declined to permit the witnesses to testify in relation to the signing, executing, and attesting of said writing; and ruled that the order and decree of this court above recited was binding upon all parties interested in said paper writing, and that the same could not be set up as a revocatory writing. The appellant alleged exceptions.