Cummins's Estate
Cummins's Estate
Opinion of the Court
Opinion by
If it were made clearly to appear that the legacy to Dr. McCollin was cancelled by the testator under the impression that the legatee was dead, the doctrine of Campbell v. French, 3 Vesey, Jr., 321; Mendinhall’s Appeal, 124 Pa. 387; and kindred cases, would save the bequest because it was revoked under a mistaken apprehension, but we agree with the conclusion of the court below that it not only does not appear that the cancellation of the legacy was made under such misapprehension but that the evidence shows that it was made for a different reason. The legacy was annulled in accordance with one of the methods permitted by the Act of April 8,1833, P. L. 249, independently of the superimposed words of cancellation, and the presumption is that such obliteration was made either before the will was signed, or after it was executed, with the intention of revoking the particular bequest. The. words written across the face of the bequest do not explain themselves, but in the light of extraneous facts disclose the testator’s motive with reference to that part of the will to which they refer. There is nothing on the face of the will which necessarily relates these words to the legacy to Dr. McCollin: It is only because they extend from that portion of the will containing the Service legacies on to the part con
The suggestion was made at the argument that Mr. Gilfillan is an interested witness, being a legatee under the will, and therefore not competent, but that point does not seem to be pressed. Any objection to his testimony is rather to its weight than its competency. It was credited by the court below and no reason has been presented why it should not be now. It is not unreasonable or improbable, and is in no way contradicted. It was not offered, as seems to be supposed by the learned counsel for the appellant, to reform an instrument on the ground of mistake, but to identify the legacy to which the inscribed words refer. Without explanation they would be meaningless, and it was competent to show by parol that they had reference to the Service bequests. The decree is in accordance with the evidence and the law applicable to the case and is therefore affirmed.
Reference
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- Will — Cancellation—Legacy—Erasure—Intention. Testatrix defaced and obliterated the name of a legatee in a will by-drawing a horizontal and diagonal lines through the names. In the clause following this bequest, she also obliterated in the same manner ■the names of two other legatees. Across the two clauses she wrote diagonally the words “Cancelled by death,” underneath which she wrote her signature. The words “by death” and her last name extended across the first legacy. There was evidence that the two legatees named in the second clause were dead at the time the cancellation was made. The legatee in the first clause was living at the time, and this was known to the testatrix, and he survived the testatrix. A witness testified that the testatrix about a year before her death, stated that she had canceled the bequest to the legatee in the first clause, and gave as a reason for such action that she did not wish him to receive any of her money. Held, that the testatrix had in fact canceled the bequest to the first legatee, and that he was entitled to take nothing under her will.