Walrod v. Farmers & Merchants Trust Co.

SHEPARD, J. Appellants have appealed from a judgment of dismissal of opposition to probate of will.

Ground I of appellants’ opposition alleges revocation by cancellation, defacement and obliteration by testatrix with intent to revoke. Ground II alleges that the will was not executed in the manner and form required by law. Ground III alleges that one of the devisees actively prevented revocation. Appellants also contend that the trial court erred in refusing to permit an amendment to state a fourth ground of opposition.

The record before us shows that the deceased testatrix, Sinah W. Kelly, on December 16,1947, made her will in which, after certain specific bequests to various collateral relatives, she bequeathed the entire residue of her estate to her husband, or, in case the husband predeceased her, the residue was bequeathed to the Mother Church of the First Church of Christ Scientist of Boston, Massachusetts, subject to certain support to the testatrix’s mother. Apparently, at some time prior to December 13, 1957, both the husband and the mother mentioned in the will had died, leaving said church as the sole residuary beneficiary, without condition. On December 13, 1957, the testatrix went to the office of her attorney and gave him instructions relative to the drafting of a new will. The attorney made certain notations on the marginal portion of one page of the will. From these notations it appears that said church was still intended to be the sole residuary beneficiary, without condition, in the new will, if executed. Apparently these notations were made with a pencil. None of them was superimposed on any part of the writing of the will and no part of the writing of the will was in any way defaced, altered, or obliterated. (At this point it is well to note that the uncontradicted evidence is that the striking out of the last line of the first paragraph of the will was done prior to the execution of the will and is not subject to any controversy in this contest.) A few days after this visit to her attorney, the testatrix wrote a letter in which she said, “I met with my tax attorney Friday [28]to make out a new will as the old one no longer met the need— John and Mama both gone and some other portions obsolete. ’ ’ Appellant’s brief states that the attorney (Kindel) prepared a rough draft of the proposed new will and sent it to the testatrix by mail, but the same was never signed. The testatrix died April 13,1958. On April 18,1958, the petition for probate of the will was filed by the trust company named as executor. Opposition to such probate was filed by these appellants, and ultimately on September 10, 1958, “amended grounds of opposition to probate of will” were filed. The record does not disclose how many amendments preceded this pleading. The legatee church filed its answer September 17, 1958, and proponent executor filed his answer October 2, 1958. On December 30, 1958, the legatee church filed its notice of motions for judgment on the pleadings and for summary judgment, together with supporting affidavits. The motion was heard January 30, 1959, but contestants did not file their affidavits and points and authorities in opposition to the motion until February 17, 1959. Judgment was filed March 2, 1959, ordering dismissal of the amended grounds of opposition to probate of will, and contestants appeal.