neither mistake nor fraud has affected the transaction. What then is the case? When the note was given, Fales and Goodspeed were joint debtors to the Plow Company for the plows as goods sold and delivered. They did not make payment in cash. But Fales gave this note as the joint obligation of the parties, and as such joint obligation the Company received it, and not otherwise. Whether this was business prudence is of no consequence. Each was liable for the whole consideration to the Plow Company, and Goodspeed might acquiesce in Fales' act in giving the note. The term of credit expired, but neither debtor paid the demand. The Company sued the debtors jointly and counted on the note, and also on the original consideration. Goodspeed in substance refused to consider the note as payment. It was given and received as the joint note of Fales and Goodspeed and not as the separate note of Fales, and under Goodspeed's objection it failed to be such a note, and the effect in point of law on the right of the Plow Company to refuse to rest upon it, was just the same as though both debtors had repudiated it. With Goodspeed's liability stricken out it was not the note agreed upon, and the company were at liberty to treat it in that way. He refused to be bound by the note, and if he was not bound by it he could not make use of it to confine the Company to it and screen himself from all liability. These views are advanced under the assumption that Goodspeed's counsel was right in claiming that the note was passed and received by way of payment. Because if it was not so taken there could be no occasion to speak about the right to recover on the original consideration. No one in that court and on this record would doubt the regularity of such a recovery. The correctness of the assumption is not material. It is made for the purpose of meeting the position of the plaintiff in error. The note fell through under Goodspeed's objection, but the debt remained and each was liable for the whole. The count for goods sold and delivered was maintainable. The authorities, if any are needed, are full and explicit. Plimley v. Westley 2 Bingham's N. C. 249; Fry v. Iill 7 Taunton 397; Burden v. Halton 4 Bing 454; Hickling v. Hardey 7 The result reached was correct in point of law, and the judgment must be affirmed with costs. The other Justices concurred. SARAH SCOTT V. JOHN FINK AND MARY FINK. Revoked will not revived by cancelling later will. A will is not revived by the destruction of a subsequent will when the latter or any intermediate will had contained a clause revoking all former wills. Error to Ingham. Submitted Nov. 10. Decided Jan. 12. APPEAL from probate. Proponent brings error. Affirmed. J. C. Shields and H. P. Henderson for plaintiff in error. The cancellation of a later will revives a former will if not destroyed: 1 Redf. Wills 308, 312, 321, 375; 1 Jarm. Wills 123, 158; Linginfetter v. Linginfetter Hardin (Ky.) 119; Marsh v. Marsh 3 Jones (N. C. L.) 77; Taylor v. Taylor 2 N. & McC. 482; Lawson v. Morrison 2 Dall. 286; Rudy v. Ulrich 69 Penn. St. 177. M. V. & R. A. Montgomery for defendants in error. A will actually revoked can be revived only by re-publication: Bohanon v. Wolcot 1 How. (Miss.) 337; James v. Marvin 3 Conn. 576; Major v. Williams 3 Curt. 453; Exp. Hellier 3 Atk. 798; Walton v. Walton 7 Johns. Ch. 268; Goodtitle v. Meredith 2 M. & S. 12; 1 Powell on Devises 309. 45 MICH.-16 45 241 106 393 45 241 124 443 45 241 f150 592 GRAVES, J. Sarah Scott propounded for probate an instrument purporting to be the last will of her father John Fink. Opposition was made by John Fink, the half brother, and by Mary Fink, decedent's widow, and the step-mother of said John and Sarah. The Court of Probate admitted the instrument as decedent's last will, and the contestants appealed from the decision. An issue seems to have been made up in the Circuit Court, but the record fails to explain its shape. Enough appears to indicate that proponent affirmed the instrument in question as the last will of the deceased John Fink, and that the contestants alleged revocation by means of a later will. The form given to the altercation is not important because it is manifest no one was misled. The contest was before a jury and they decided against proponent, and she then brought error. The surrounding facts are not disputed. At the time of his death the decedent had been three times married. The contestant John was a child by the first wife, and the proponent Sarah a child by the second. There was no issue by the third. In 1869 the decedent removed with the second wife and their daughter Sarah to Williamston in Ingham county and there established his residence on a small place of between seventeen and eighteen acres, the family consisting of the three. His entire estate was worth something more than $10,000 and was all personal except the little farm place just mentioned. Soon after he took up his residence in Williamston, and on the 15th of November, 1870, he made and published the will sought to be established. He brought it home from some place after it had been drawn and executed, and delivered it to his wife who read it and then passed it to her daughter, the proponent, to take care of. After providing for the payment of debts and expenses it purported to give his son, the contestant John, $300 and all the remainder of his property to his then wife, Anna Fink, for life, and remainder in fee to his daughter, the proponent Sarah. He appointed proponent's mother Anna sole executrix. He subsequently made another will containing similar pro visions. It was executed within a year or less after the first. The first will fixed the time for payment of the legacy to John at two years after the testator's death, and the second one extended the time to three years, and also stated by way of explanation for not giving more to John, that the testator had previously helped him. The second will differed in no other respect from the first. September 1st, 1875, Anna Fink, proponent's mother, died. Shortly after that event decedent made and published a third will. It was drawn by Mr. Smith and the scheme was altered to meet the change which had taken place. The decedent took it home and showed it to his daughter, the proponent, and she read it and he placed it among his private papers. And on that occasion he burned the second will. His daughter, the proponent, was named executrix in the third will. There was no controversy at the trial about the formalities of the first will. Had nothing occurred after its publication to impair it, it must have been regarded as its author's last will. This is virtually conceded. The proponent was sworn as a witness on the part of contestants, and she testified concerning the second and third wills. Indeed the entire history of the second will was derived from her. She also explained how her father brought home the third will, and how she examined it, and what its provisions were. She testified that she was named executrix; that three hundred dollars were given to her half brother and the remainder to her; that there were no other bequests, and that she cannot tell whether it contained a clause of revocation or not. She also mentioned that there had been rumors of the destruction of the third will. She did not swear it was still extant. On the contrary, she testified that she did not see it destroyed, and that all she knew about its destruction was, that after her father's death the report went out that it was destroyed, but that she did not know from whom. It is not unworthy of notice that the deposition of proponent established the existence of the third and latest will, and showed that its provisions were inconsistent with the first, and hence sufficient to work a revocation of it, and moreover, that so far as she knew, it was still in existence. At the conclusion of her evidence, therefore, the third will was presumptively on foot, and there was a prima facie case of revocation of the first. But the contestants proceeded with commendable fairness to explain all the facts. In July, 1876, the decedent intermarried with the contestant, Mary, in Oswego county, New York, and she returned with him to Williamston, where they resided together as husband and wife, until his death. When he went to New York, he carried his third will with his other papers, and showed it to her, and on his return to Williamston, and whilst looking over his papers, he took the will out and handed it to her with the request to put it in the stove and burn it, and she complied, and it was then burned. The proof was positive that it contained a clause of revocation. The testimony of the gentleman who drew it and of his law partner, who knew its contents when it was executed, was in some respects different from that of proponent in relation to its dispositions, but these variances afford no aid to her case on any theory. That this third will was destroyed by its author is not disputed. The declarations made to his daughter, the proponent, on the occasion of his bringing home the third will and destroying the second, were adduced in evidence, as were also his declarations to his wife, the contestant Mary, on the occasion of requesting her to burn the third will. But the point in the case is whether the cancellation of the third will was sufficient to restore the first. The proponent insists that it was, and the contestants deny it. There has been much difference of opinion on the question whether the revocation of a second will is of itself sufficient to revive the first. For the last century those maintaining that it is, argued that the second will is without force against the first unless it becomes effective by being allowed to survive the testator, and the opinion of Lord Mansfield in Harwood v. Goodright Cowper, 87, is cited as conclusive. That case originated in the Common Pleas, and is fully reported |
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