2 U.S. 286 (1792)

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LAWSON v. MORRISON, 2 U.S. 286 (1792)

2 U.S. 286 (Dall.)

Lawson, Appellant
Morrison, et. al. Appellees

High Court of Errors and Appeals of Pennsylvania

July Session, 1792

Appeal from a sentence of the Register of Wills &c. and two justices of the Common Pleas for the County of Cumberland. The case had been argued in July 1789, (before the present organization of the Judiciary Department under the existing Constitution) and afterwards in October 1792, by Bradford and Ingersoll, for the appellant, and by Lewis for the appellees.

The facts, on which the appeal arose, were as follow: A written paper, purporting to be the Will of Janet Morrison, dated the 19th of October 1775, was exhibited for probate to the Register of Wills, &c. on the 19th of October 1786. A caveat was entered by the appellant against admitting it to be proved, alledging that the testatrix had made a latter Will, which expressly revoked the former will; and that the latter Will had not been cancelled, nor destroyed, although it could not be found after her death. The Will of October 1775, was, however, established, by the sentence of the Register's Court; from which sentence the present appeal was brought; and new evidence was given in this Court.

On the record and evidence, it appeared, that Janet Morrison had a Will written before this of 1775, by Oliver Anderson, which former Will was duly executed. The same scrivener wrote this Will. He afterwards wrote another Will in 1777, and a fourth Will about the latter end of the year 1779. The testatrix destroyed the first Will, when the Will of 1775 was executed, and also that of 1777 when she executed the Will of 1779. In the last Will, the scrivener (who was a witness) believes there were words revoking all former Wills, and

Page 2 U.S. 286, 287

that he had usually inserted such a clause in all the Wills he wrote; and John Ray, a subscribing witness to the Will of 1779, swears, that, when it was executed, the testatrix declared it to be her last Will, and that she revoked all former Wills. The legatees were generally the same, in the Wills of 1775 and 1779; but the legacies were larger in the last, on account of the then depreciated state of the paper bills of credit emitted by Congress. The Will of 1779 had been delivered to the testatrix about ten days before her death, by a Mrs. Linn, whom she had sent for it, to Oliver Anderson, who then had both Wills in his custody; but the Will of 1779 has not been seen afterwards. James Lawson, the appellant, is the eldest son of James Lawson, an only brother of the testatrix, who had no sister; but her brother had two other sons, named Thomas and Francis, and no other descendants. The testatrix had induced her nephew, James, to come from Ireland to Pennsylvania, with his family, some years before her death, and about a week before that event received them, with their effects, into her house, and a few days after she had obtained the Will of 1779, from Oliver Anderson. For some weeks before her death she expressed great kindness for the appellant, and frequently said, 'all her estate must be his.' But when the Will of 1779 was executed, the one of 1775 was not cancelled; because the testatrix was then out of humour with the appellant, and she was afraid lest the will of 1779 might get into his hands, or be lost; and, in such case, she desired Oliver Anderson to produce the will of 1775, as he has deposed.

Upon this statement the question arose, whether the Will of 1779, ( whose contents did not appear, but from the deposition of Oliver Anderson) was a revocation of the Will of 1775?

For the appellant, two propositions were stated, and the corresponding authorities cited: 1st. That the Will of 1777, was a revocation of the Will of 1775, in act, as well as intention, either of which is sufficient. Moore 177. 3 Mod. 260. Dy. 143. Off. of Ex. 20. Swinb. 15. 525. Cowp. 90. God. Or. Leg. 51. 54. Cro. I. 115. 1 Roll. Abr. 614. 2 Eq. Abr. 771. 2nd. That the mere cancelling of a latter Will, much less the mislaying or loss of a latter Will, is not a revival of a former Will: The cancelling may be done with a view to die intestate; and the mislaying may be accidental; and the Will of 1777, being in writing, can only, by the act of Assembly, be annulled by writing. 3 Atk. 799. Doug 36. Cowp. 49. 1 P Wm. 343. 345. 4 Burr. 2513. Loft. 465. 470. Pow. Dev. 534. 535. 1 vol. Penn. L. (Dall. Edit.) p. 53. sect. 2. 6.

For the Appellees, the case was considered in various points of view. 1st. Does the law of Pennsylvania permit the revocation of a Will by parol, or must it be in writing? The act of Assembly declares that it shall be in writing. 1 Vol. Dall Edit. p. 55. s. 2. 6. In England, it is true, a Will might [2 U.S. 286, 288]

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