well upon this point. The codicil was, however, admitted to probate as independent of the will, intention being established, and hence the question of revocation by a duly executed instrument was not altogether clearly before the court. Again, a codicil headed, "This is a codicil to my last will and to be taken as a part thereof," was pronounced for as not contingent upon the existence of the destroyed will. Here it was said, "In all the cases referred to there were circumstances which showed that the codicils were dependent on the wills; there is nothing here to show that the codicil was contingent upon the existence of the will. The court, therefore, in this case suggests a presumption contrary to that raised in other cases, for it decides that to make the codicil invalid there must be proof that it was intended to be dependent on the will." And, though a testator had desired a codicil, made two days before death, to be added to his will, which afterwards could not be found, the codicil was proved as independent, and as the testator's only substantive testamentary paper.3 Where the intent of revocation is not present, a substantially independent codicil has been admitted to proof. But the more correct view of the law regarding the revocation of codicils is as stated in Black v. Jobling, to the effect that it must be by some one of the modes prescribed by the statute. Where a testator destroyed a codicil, not meaning thereby to revoke his will, it was admitted to probate, as the act was not done animo revocandi. A careful Effect of later review of the decisions upon the effect of a codicil appears to show that its revocation does not revoke the will to which it applies, unless the intention be apparent, and even then due execution is absolutely necessary. 6 decisions. The cancellation of a codicil cancelled also an inter- Effect of canlineation, similar to the codicil, uncancelled in the will.7 cellation of 1 Tagart v. Hooper, 1 Curt. 289. 2 See Black v. Jobling, ante, p. 108. 3 Halliwell, 4 N. C. 400. Ellice, 33 L. J., Prob. 27. 5 1 P. & D. 433. 6 Before 1838. 1 Utterson v. U., 3 V. & B. 122. codicil. Revocation by codicil. Effect of reference by date. Revival by codicil. A future intention is bad, The codicil by revocation here effected a revocation pro tanto in the will, or an erasure.1 But when there is no destruction where, upon a proper construction of the revoking instrument, the intention of revocation is not to be gathered with sufficient certainty, i.e., where there is any doubt, in the absence of proof, ́revocation will not ensue, and such has been generally the basis of the judgments in subsequent cases.3 The question is always one of intention, to be collected from the language of the later instrument. If there appears any inconsistency between two (or more) papers, this is a certain indication of the testator's intention, and the latter must prevail, and revokes the former to the extent to which the two are inconsistent. In this case several intermediate codicils were admitted to probate with the last one, as not revoked by it, and as forming part of the will, which "did not clash" with it. A codicil, referring, by date only, to a revoked will, does not revive it.4 Here the date was a wrong one, owing to error from hurry, and hence the intention was lacking. But a codicil which refers in adequate terms to a revoked will revives it, if it be still in existence; but the intention must be clear (1 Vict. c. 26, s. 22),5 i. e., it must appear on the face of the codicil either by express words referring to a will as revoked and importing an intention to revive the same, or by a disposition of the testator's property inconsistent with any other intention, or by some other expression conveying to the mind of the court with reasonable certainty the existence of the intention. Mere reference by date, without evidence of an intention to revive, is insufficient." Words declaring a future intention to revoke are not operative, even though the revoking instrument be duly executed. As, where a testator by a subsequent will, after 1 Larkin v. L., 3 B. & P. 16. 2 Doe v. Hicks, 8 Bing. 479. 3 Molyneux v. Rowe, 8 De G., M. & M. 368. 4 Ince, 46 L. J., Prob. 30. 5 Post, p. 114. See Steel, May, and Wilson, 1 P. & D. 575. devising realty, which had accrued since his former will, added, as to the rest of his real and personal estate, that he intended to dispose of the same "by a codicil to that his will thereafter to be made," and afterwards died without doing any other act to revoke his will. These words, declaring only an intention to revoke, did not amount to a revocation. A letter written to her executor by a testatrix to destroy her will was interpreted by the court as a present as opposed to intention absolutely to revoke reduced into writing in the a present one. testatrix's lifetime, and not a revocation by words; and though the will was, apparently, and unknown to her, unrevoked at her death, the court held it to have been actually revoked when the letter was written.2 no case testamentary. A void deed is not "a writing declaring an intention to A void deed in revoke," under the Wills Act,3 and therefore inoperative to revoke any testamentary paper earlier or later. If construed as a will by the Probate Division this, of course, would not apply. Express declaration does not mean "I do declare that I Effect of intend to revoke my will," but that any equivalent words declarations. which amount to that will be sufficient. Nay more, any will, revocatory of earlier ones by its general effect, will, though the intention be not expressed, directly or indirectly, result, it seems, in revocation. And this appears obviously to apply to all subsequent testamentary papers, be they wills, codicils, or "some writings." Where a testator intended to effect a revocation in Inconsistent writing, but by his solicitor's error the codicil was made papers. to refer to the wrong will of two, all the papers were admitted to probate to be construed in chancery. A. made a will leaving personalty to his children. He Example. made a later will, altering his bequests. He made a codicil, intended by him to refer to his second will. His solicitor drew it in error as referring to the first. All the 1 Thomas v. Evans, 2 East, 488. 2 Walcot v. Ochterlony, 1 Curt. 580; see also Durance, 2 P. & D. 406. 3 Sect. 20, ante, p. 58. 4 Ford v. De Pontes, 30 Beav. 594. above papers were admitted to probate, the court declining to amend the solicitor's error.1 One object of was to abolish REVOCATION BY IMPLICATION. One great object of the Wills Act was to put an end to the Wills Act all those questions which previously arose where a devise was, in effect, destroyed by the alteration of the estate of the testator. This is distinctly pointed out by the 23rd section, which states that no conveyance or other act, subsequent to the execution of a will relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will on the interest therein, which a testator may have at his death. Now, no will shall be revoked. by any presumption of an intention, on the ground of an alteration in circumstances.2 revocation by presumption. Marriage is now an ex press revoca tion. The question of execution Marriage by either man or woman is an express revocation, except of a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor or administrator, or the person entitled as his or her next of kin, under the Statute of Distributions. Therefore all cases, in which it was formerly held that a will was revoked by an alteration of the estate of the testator, are now put an end to by this section of the act, and a will can only be revoked by marriage, express declaration in writing, &c. ; so that where a marriage is void, and administration of the deceased's estate has been already granted, his will having been considered revoked, on the assumption of the validity of the marriage, the grant will be recalled, and the revocation annulled, and probate will issue of the will as valid.4 In a case where, in default of the execution of the 1 Stedham v. Dyke, 6 P. D. 205. 3 Wills Act, s. 18, ante, p. 58. Mette v. M., 1 Sw. & Tr. 416. is at times all power, the estate would have gone to the heir before of the power marriage, and have shut out the children of the marriage, important. its due execution becomes all important. If the will is a valid execution of the power, it is unrevoked; in other words, if the trust moneys, in default of the appointment under the power, would pass under the Statute of Distributions-revocation by the marriage would ensue. In the case just cited, the appointment under a power failed of effect by the death of the person benefited under the will, in the testatrix's lifetime, and was, therefore, unexercised. Recurrence to the terms of the power, under which she made the appointment, then became requisite. They were, in default of such appointment, in trust for the person or persons, who, at her decease, should be her next of kin. The words next of kin, taken alone, do not imply the same Next of kin, class as the words next of kin specified in the Wills Act, as "heir, customary heir, executor, or administrator, or the persons entitled as (his or) her next of kin under the Statute of Distributions; "3 and hence the will was held to be unrevoked. The interpretation of the words “next of kin," are to be taken to mean the nearest of kin.* who? plication. A codicil, expressed to take effect only upon an event A codicil rewhich does not happen, republishes a will to which it refers voked by imby date, and is, on that ground, entitled to probate. Upon that event failing revocation is undoubtedly implied, but this appears to be subservient to the doctrine that an executed codicil revives a will.5 Two unmarried sisters made wills intended to operate as Mutual wills. mutual wills, and the will of one was afterwards revoked by her marriage, but the other was held not to have been revoked. Here the mutuality was not apparent on the face of the unrevoked will, and, on the ground that the 1 Logan v. Bell, 1 C. B. 872. 2 Fitzroy, 1 Sw. & Tr. 134; see also Fenwick, 1 P. & D. 319; M'Vicar, 1 P. & D. 672. 3 Wills Act, s. 18, ante, p. 58. 780. Elmsley v. Young, 2 My. & K. • Da Silva, 2 Sw. & Tr. 315. 160. |