La Croix v. Senecal, 140 Conn. 311 (1953)
Author: Anonymous 

Facts: The testatrix Dupre, died leaving her niece the Pl as next of kin.  She left a will dated 1 mo. prior, and a codicil dated 9 days prior to her death.  The will divided her estate equally in two halves: ½ to her nephew Nelson Lamoth, and the other ½ to Ms. Senecal, the Df.  The codicil only changed the name of her nephew and included the terms “I hereby republish and confirm my said will in all respects except as altered by this Codicil.”  One of the three subscribing witnesses to this codicil was the husband to the Df. 

Issue: Whether the devise or bequest to the Df under the terms of the original will is valid in light of the statutory prohibition against a subscribing witness being the spouse of a devisee?

Holding: Yes.

Procedure: Pl, niece brought action for declaratory judgment as next of kin requesting interest in ½ intestacy share of one half of the estate. Trial ct held: the residuary devise and bequest to the df was Void, but no resulting intestacy b/c the gift under the will was valid. Pl appealed.  Conn. S. Ct. Affirmed.                

Rule: Every devise or bequest given in any will or codicil to a subscribing witness, or to the husband or wife of such subscribing witness, shall be void UNLESS such will or codicil shall be legally attested without the signature of such witness . . .the competency of such witness shall not be affected by any such devise or bequest.

Rationale: If a testator cancels or destroys a will with a present intention of making a new one immediately, as a substitute, and the new will is not made, or if made fails of effect for any reason, it will be presumed that the testator preferred the old will over intestacy, the old one will be admitted to probate in the absence of evidence overcoming the presumption. Stated differently, “Where the intent to revoke is conditional and where the condition is not fulfilled, the revocation is not effective.”  The testator’s intent to conditionally revoke the will must be clear.  In this case it is clear that the testatrix’ intention to revoke the will was conditioned on the execution of the codicil which would be effective and continued the same disposition of her estate.  After the gift under the codicil was determined void by the use of a spouse as a subscribing witness, the conditional intention of the testatrix to revoke the will was rendered inoperative.  Thus, the gift under the will, being the same, continued in effect.