Burtt Will

Dissenting Opinion by

Mr. Justice Linn :

The question in this case is very simple: what did the legislature mean by section 20(a) of the Act of June 7, 1917, P. L. 403, 20 P.S. 271? “No will in writing . . . shall be repealed, nor . . . altered, otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the manner hereinbefore provided”; the words “in the manner hereinbefore provided” refer to section 2, 20 P.S. 191, that “in all cases [the revocation] shall be proved by the oaths or affirmations of two or more competent witnesses ; otherwise . . . shall be of no effect.”

1

"We have held, in cases to be cited, that oral revocation was prohibited.

A will must be signed at the end, and if offered for probate, the signature must be proved by two witnesses. If the revoking paper is a will admitted to probate, no question arises:

McClure’s Estate,

309 Pa. 370 , 165 A. 24 , is an example. If the revoking paper is not a will but an “other writing,” (the words used in section 20) it must be proved as a will is proved, that is, it must have a signature and the signature must be proved.

2

If after signing a paper, the signer cancels his signature while the paper is still under his control, it is not one that can be proved as a will must be proved because by erasing his signature he has declared that the document shall not be his effective legal act; after its cancellation,

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there is no signature to prove. When appellant offered the document of 1939, it had no signature and was therefore not provable, as section 20 required; it should therefore not be held to have revoked the will admitted to probate.

The court now decides, as I understand it, that revocation may be shown by oral evidence. The opinion states that the decision is supported by

Ford’s Estate,

301 Pa. 183 , 151 A. 789 , but in that case the “other writings” relied on (there were two of them, p. 195) were signed; in the course of the opinion, Mr. Justice Schaffer stated that the prior will “was revoked by writings admittedly signed by the testator which writings so signed are produced.”

The majority opinion states that

Ford’s Estate

was followed in three cases. But in what respect was it followed? The rule followed was that there may be no oral revocation.- In the first case,

Shetter’s Estate,

303 Pa. 193 , 154 A. 288 , the opinion states: “We there ruled [in

Ford’s Estate]

that there can be no oral revocation of a will.” At page 197 we said: “A writing declaring its revocation must be produced, signed by the decedent, before an earlier will can be rendered nugatory.” The other two cases,

Harrison’s Estate,

316 Pa. 16 , 173 A. 407 , and

Koehler’s Estate,

316 Pa. 321 , 175 A. 424 , also declared that revocation cannot be proved by oral testimony. These cases therefore show that the decision now made is a departure from the rule formerly applied.

The majority opinion speaks of

stare decisis.

The opinions in the

Ford, Shetter, Harrison

and

Koehler

cases say that oral revocation cannot be proved.

Stare decisis

would seem to require that in this case also we should hold, with the learned court below, that there can be no oral revocation. The record is clear that there is no signed, “other writing”; no “other writing” with a signature capable of being proved by two witnesses as was the case with the two writings in

Ford’s Estate .

The majority opinion speaks of rebutting a presumption of revival. The attempt to rebut was by oral evi

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deuce, though we have consistently stated that oral revocation was prohibited.

I would affirm the decree appealed from.

1

The Act was a re-enactment of similar provisions of the Act of 1833, which was construed, contrary to the view now taken by the majority, in

Rudy v. Ulrich,

69 Pa. 177 , and

Hamilton’s Estate,

74 Pa. 69 .

2

“A writing declaring its revocation must be produced signed by decedent before an earlier will can be rendered nugatory.”

Shetter’s Estate,

303 Pa. 193 , 154 A. 288 .