Scott, Woodson D.

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University of Kentucky

Kentucky Law JournalVolume 16 | Issue 1 Article 81927The Doctrine of Dependent Relative Relocation inKentuckyWoodson D. ScottFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Estates and Trusts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationScott, Woodson D. (1927) "The Doctrine of Dependent Relative Relocation in Kentucky," Kentucky Law Journal: Vol. 16 : Iss. 1 ,Article 8.Available at: https://uknowledge.uky.edu/klj/vol16/iss1/8THE DOCTRINE OF DEPENDENT RELATIVE REVOCA-TION IN KENTUCKYThe doctrine of dependent relative revocation in the law ofwills is based essentially upon mistake. In all cases where a tes-tator attempts to revoke an existing will by an act of cancellationor mutilation to the instrument itself, the act of cancellation ormutilation, in order to effect a revocation of the existing will,must be dofie with the intention to revoke. The intention and theact must concur. Otherwise the act is void. Thus, the doctrinehas been stated by an eminent English text writer as follows:"Where the -act of cancellation or destruetion is connected withthe making of another will so as fairly to raise the inferencethat the testator meant the revocation of the old will to dependupon the efficacy of the new dispostiion, such will be the legaleffect of the transaction; therefore, if the will intended to be sub-stituted is inoperative for defect of attestation or any othercAuse, the revocation fails also and the original will remains inforce." I The basic theory of this doctrine is that the intentionof the testator at the time he did the act to revoke the existingwill was conditioned upon the validity of some other testa-mentary paper which he was about to make. If the other testa-2nentary paper was never established, the prior intent was noteffective to give effect to the act. Then, since there was only anact of revocation without an intent to revoke, the act was voidand the recovation was not accomplished. This doctrine iscalled the doctrine of dependent relative revocation. That is,the attempted revocation was dependent upon a related act whichnever came to pass. Therefore, there was, in law, no revocationat all. The original will still stands as it did in the first instance.The intention of the testator is the test of the doctrine in allcases.The general doctrine in its entirety is applied in somethingmore than half of the states. It is accepted in many other stateswith certain limitations.In Kentucky we are confronted with a rather unique situa-tion. So far as we have been able to find by a thorough searchof the books, there is no case in Kentucky that even considersthe doctrine of dependent relative revocation as such. The21 Jarman on Wills 160.DOCTRINE OP DEPENDENT R TIV REVOCATIONcourts of this state have neither accepted or rejected it in expressterms. In no decision in this state are the words "dependentrelative revocation" used. However, there are several cases inKentucky that seem to involve the doctrine in substance. Wenow turn to consider these tases to determine, if possible, theprobable effect they would have should the question be presentedto the courts of this state in a proper case.In the case of Youse v. Forman2 there is a dictum as follows:"There is a class of cases, to which, however, this does not be-long, where the testator does an act of cancellation or mutilationwith the view of having his will immediately changed or altered;where the act of cancellation and the reconstruction of the willare intended as a part of the same transaction, ald the recon-struction or republication of the will is not perfected, then theacts of cancellation are to be regarded also as incomplete becauseof the failure of the other essential acts." This proposition, al-though it is dictum only, seems to involve the doctrine of depend-ent relative revocation in a modified or limited form. But it wouldseem to limit it to the cases where the cancellation and the re-construction of the new will are part and parcel of the sametransaction.In the case of Wells v. Wells 3 the court of the county wherethe testator died refused to probate the will because, accordingto the view of the county court, it had been revoked by the tes-tator before it was offered for probate. The will that was offeredfor probate was proved by the subscribing witnesses thereto.The capacity of the testator was not questioned. The will whenfirst executed was acknowledged and published. Some timeafterwards-the case does not say how long-the testator sentfor the amanuensis who wrote the will and one of the witnessesthereto. The testator told the draftsman that he (the testator)had determined to change one of the executors named in the orig-inal will, and to substitute another executor in his stead. Theperson who wrote the will then erased the name of that executorfrom the original will and inserted in the same place the nameof another individual whom the testator chose as executor. Afterthis erasure and insertion there was no formal publication of2 5 Bush 337.1 4 T. B. Monroe 152.KENTUcKY LAw JouRNALthe will before the same or other witnesses, or any other at-tempted compliance with the requisites of the statute. This wasthe only ground urged by the contestants to invalidate the orig-inal will. The county court held that the original will had beenrevoked by the erasure and substitution, and refused to allow itto probate. The upper court reversed the lower court and or-dered the will to be probated. The opinion of the court on thisthis point is 's follows:"It must strike every one who hears this statement that tomake such an act amount to the revocation of a will, once validand well executed, is to torture the act of the testator to speak alanguage directly contrary to his evident intention; and the in-tenltion must always be sought for in express revocations. Thiserasure did not and could not affect a single devise or bequest;but rather confirmed them. So well settled is the law on this sub-ject that striking out without republication even the name of adeVisee after the publication of the will has been held to be arevocation pro tanto only. Much stronger is the reason for notholding the exchange of the name of an executor to be a revoca-tion. The power of an executor generally extends to the per-sonal estate only; he may be appointed or exchanged with onewitness only."The judgment of the county court is therefore held erron-eous and must be reversed with costs. The will must be admit.ted to record in this court, as fully proved, and then remandedto the court below, there to be recorded and preserved, as fullyproved in this court."The judgment admits the will to record in the upper court,as fully proved, and then remands it to the lower court, there tobe recorded and preserved, as fully proved in the upper court.This is provided for in the specifice words of the judgment. Butso far as we can determine from the opinion in the case thecourt did not say who was to be the executor of the will. Thereare three possibilities: First, that the original will as it stoodbefore the change was made was probated just as if there hadnever been any attempted revocation of it and the persons namedtherein as the executors of the estate were declared by the countycourt to be the executors of the will as probated. Second, thatthe erasure and insertion were considered as a revocation proDocmn OF DEPENDENT RiIATIV, REVOOcATIOwtanto only and the will admitted to probate with the name of oneexecutor stricken out and the other remaining executor made thesole executor of the estate under the will as probated in this in-stance. Third, that the county court probated the will as itstood after the erasure and insertion and allowed both of the per-sons named therein as executors to be the executors of the willas it was probated in the country court. In the first case the doc-trine of dependent relative revocation applies. The situation istreated as if the erasure and insertion were made only on thecondition that the will as it stood after the change was made wasvalid. Then, since the altered will was not duly executed incompliance with the statute, as the testator intended, the changedid not amount to a revocation of the part altered and the wholewill as originally executed still stands just as if no attempt hadbeen made to change it. This view of the case represents thedoctrine of dependent relative revocation in its general applica-tion. In the second proposition advanced, supra, the doctrine ofpartial revocation applies without regard to the doctrine of de-pendent relative revocation. The idea here is that the erasureamounted to a revocation pro tanto only of the original will andthat the inserion of the name of another person as executor,not being duly attested, did not become a part of the partiallyrevoked will. The third case seems to be the most improbable ofthe three propositions advanced above as to the possible finaldisposition made of the case in the county court under the de-cree of the upper court remanding the case with instructions tothe county court to probate the will. That is, it seems -absurd tosay that the county court probated the will as it stood after itwas changed because the altered instrument was never duly at-tested nor was the alteration therein ever attested by the wit-nesses to the original will or by other witnesses. Therefore, itis almost certain that this view of the case is erroneous and wasnot applied by the county court in making a final disposition ofthe case.In determining who will be the administrator of the estatein a case of this sort the court will first have to decide whetherthe doctrine of dependent relative revocation is to obtain at allin the jurisdiction in which the court is. If it does not obtainin that jurdisdietion, then the court will probably apply theKENTUCKY LAw JOURNALdoctrine of partial revocation and allow the will to be probatedas it stood after the erasure was made. But if this question arisesin a jurisdiction where neither the doctrine of dependent rela-tive revocation nor the doctrine of partial revocation is recog-nized, then the court must declare the whole will to be void whenit is presented for probate. If, however, the question comes upin a state where the doctrine of dependent relative revocationprevails, gnd also the doctrine of partial revocation, the courtwill first have to decide whether the case at hand is one in whicheither doctrine should be applied. In such a case the decisivequestion will be whether the testator intended the act or erasureand insertion to be an unconditional revocation pro tanto onlyof the will or whether the intent of the testator was to make suchact or erasure and insertion contingent on the validity of thealtered instrument. If the latter is the case, then, since the actor erasure and insertion was void for want of proper attestation,the doctrine of dependent relative revocation applies and thewill should be probated as originally drawn.Even in the jurisdictions where the doctrine of dependentrelative revocation obtains it is not ordinarily applied in thecases where the testator destroys his will, when, at the time ofdestroying the will, he merely intends at some indefinite futuretime to make another will. This proposition was laid down inthe case om Semnmes v. Semmes,4 a Maryland case where the doc-trine of dependent relative revocation is generally applied in itsfull scope. The indefiniteness of the time at which the futurewill is to be made seems to have a great deal to do with this de-cision. Most other jurisdictions follow the same rule. We maywell expect the same principle to apply to the cases in Kentuckyif the doctrine is ever expressly recognized in this state. Andalthough the words "dependent relative revocation" are notexpressly used, this very proposition was -raised in the Kentuckycase of Sanders v. Babbitt.5 In this case the county court re-fused to probate a certain instrument propounded as a last willand testament. In December, 1892, the testator had one of hisneighbors write his will -at his dictation which he subsequentlysigned in the presence of two witnesses, who attested the will'7 Har. & 3. (Md.)8 106 Ky. 646, 51 S. W. 163.DOCTRE OF DEPENDENT RELATIVE REVoCATIONat his instance and request. He then gave the will to one of thewitnesses to keep until his death. Two years later he took thewill away from the witness to whom he had given it, telling himas a reason for his taking it away that he wanted to make somechanges in it. Later he sent for the other subscribing witnessand told him what he wanted to do. After some discussion as tothe proper way to make the proposed changes, the testator toldthe witness to cut his name and the names of the subscribingwitnesses from the paper, leaving the body of the instrument un-changed. Then the witness in the presence of and by the direc-tion of the testator, made on the paper several additional be-quests to the children of the testator and gave the instrumentback to him so he could have it properly attested. The testatordied within a year and this instrument was found among hisother papers, signed in his own handwriting but not attested.The fourth clause of the will had been cancelled by being inter-lined in the testator's own handwriting and a memorandum hadbeen made on the will by him explaining his reasons for cancel-ling the fourth clause. The testator had never asked the wit-nesses of the original instrument to attest the will after the addi-tion had been made to it. *When the will was offered for pro-bate, the county court rejected it on the ground that the cuttingof the names of the testator and subscribing witnesses therefromby the testator's direction and in his presence was a revocationof the will, and the paper never having thereafter heen re-exe-cuted as required by statute, it was adjudged by the court thatthe instrument as offered was not entitled to be probated as alast will and testament. The upper court was asked, on appeal,to direct the county court to probate that part of the will whichremained after the signatures of the testator and of the attest-ing witnesses were cut off, upon the ground that the cutting ofthe signatures from the will by the direction of the testator wasnot done with the intent to revoke the will unconditionally and,at all events, and that the addition thereto should only be treatedas a codicil. The Kentucky statute in regard to the revocationof wills is a substantial re-enactment of the English Statute ofFrauds. It requires the act of revocation to be done with theintent to revoke the will. The upper court held in this case thatthe act of the testator in having his name and the names of theKENTUCKY LAW JOURNAL.ubscribing witnesses cut from the will indicated an intentionon his part to revoke the will unconditionally and at all eventsand without any direct regard to future events or contingencies.The opinion in part on this point is as follows:"It is apparent that the controlling fact to be ascertainedin passing upon the question of revocation is, what was the in-tention of the deceased in having the signatures of himself andof the attesting witnesses clipped from the paper? The sig-nature is certainly an essential part of the will. Without itthere can be no will, and, if it was the purpose of the deceasedto revoke his will, no more effectual means could have been re-sorted to, short of the total destruction of the paper. The evi-dence of such intention is fortified by the fact that, in additionto cutting off the signatures of himself and of the subscribingwitnesses, he made a number of important and material changesin the disposition of his property, both by adding other clauses,.and by erasing provisions previously inserted. It is certain thatthe paper sought to be probated is essentially different from thatfrom which the signatures were clipped, and this is in itself per-suasive of the intention of the deceased to revoke the other; andthat he thought the old will was revoked is conclusively shownby the fact that he informed the draftsman, -after the additionshad been made, that he would have the new document properlyattested when the witnesses came out. After careful considera-tion of all the facts and circumstances connected with the muti-lation of the old will, we are of the opinion that it was done bythe deceased with the intention of revoking it, and, as the newwill has never been revived by a re-execution thereof as pro-vided by law, it was propery rejected as the last will and testa-ment of decedent. For the reasons indicated the judgment isaffirmed."The mere fact that the court refused to apply the doctrineof dependent relative revocation in this case does not positivelymean that the doctrine could not be invoked in a proper case inKentucky. If the facts of this ease are transferred to a juris-diction where the doctrine of dependent relative revocation isrecognized in express terms and applied in its full scope, it isstill not such a case as would come within the rule. The merefact that the testator destroys his will intending to make an-DocTRINE OF DEPFNDENT REuATIVE REVOCATIONother will at some indefinite future time and fails to make thewill as he intended is not of itself a sufficient reason to invokethe doctrine even in the states where it would ordinarily applyin a proper case. This point was decided in the case of Semmesv. Semmes, supra. The doctrine of dependent relative revocationwill never apply where a person has deliberately and intention-ally cancelled his will, intending the cancellation as uncondi-tional, even though he may intend to execute another will atsome indefinite future time. Therefore, the case of Sanders v.Babbitt, supra, is not authority in point for the proposition thatthe doctrine of dependent relative revocation is rejected in thelaw of Kentucky.The result of our search of the books for cases in Kentuckyapplying or rejecting the doctrine of dependent relative revoca-tion in express terms is "no cases found." But the cases dis-cussed above seem to involve the doctrine in some form eventhough it may be only a modified form. The Kentucky courthas not precluded itself from adopting the doctrine of depen-dent relative revocation if and when a case involving such a re-vocation is presented to it and argued squarely on the basis thatwhere the act of cancellation or destruction is connected with themaking of another will so as fairly to raise the inference that thetestator meant the revocation of the old will to depend upon theefficacy of the new disposition, such will be the legal effect of thetransaction; therefore, if the will intended to be substituted isinoperative for defect of -attestation or any other cause, the re-vocation fails also and the original will remains in force. 6WOODsON D. Scour.I Jarman on Wills, 8ura, note (1).

The Doctrine of Dependent Relative Relocation in Kentucky

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The Doctrine of Dependent Relative Relocation in Kentucky

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