Stewart v. Johnson

Lott Johnson, decedent, executed a will in 1937 and then made a new will in 1938 revoking the 1937 will. However, the 1938 will had only one attesting witness and was therefore invalid. The 1937 and 1938 wills were substantially similar in testamentary scheme. When Lott dictated the 1938 will to his secretary, Duke, he read passages directly from the 1937 will to be incorporated into the 1938 will. Lott then directed Duke to present the 1938 will to relevant authorities upon Lott’s death. Because the 1938 will was declared invalid and the 1937 will was not presented for probate, letters testamentary were issued to Lott’s widow, Mrs. Johnson (defendant), under the intestacy statute. Under intestacy, as compared to the terms of the 1937 will, Mrs. Johnson would inherit substantially more but the other beneficiaries would not inherit at all. Benjamin Stewart, along with other 1937 will beneficiaries, challenged, arguing the doctrine of dependent relative revocation allowed the 1937 will to be probated following the invalidation of the 1938 will because (1) the revocation of the 1937 will was conditioned on the validity of the 1938 will, and (2) the similarity in the terms of the two wills indicated Lott preferred the 1937 will to dying intestate. Stewart submitted a carbon copy of the 1937 will, which had been held by the original drafting attorney; the original 1937 will was lost. The probate judge reestablished the 1937 will and admitted it to probate. Mrs. Johnson appealed, and the circuit court reversed, holding that Lott’s intent to revoke the 1937 will was clear and was not conditioned on the validity of the 1938 will. Stewart appealed.