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presence, and by his express direction; and be subscribed, in his presence, by three or four credible witnesses (9). And a solemnity nearly similar is requisite for revoking a devise by writing: though the same may be also revoked by burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence and with his consent (10); as likewise impliedly, by such a great and entire alteration in the
writing, to an attesting witness who did not see him actually execute his will. (Addy v. Grix, 8 Ves. 504; Morison v. Tumour, 18 Ves. 183.) But a distinction must be attended to, where the devise is in execution of a power; there, it is not the will which is to be attested, but the act of the testator in subscribing that will. (Wright v. Wakeford, 17 Ves. 458.)
(9) Mr. Christian observes, that "copyholds and terms for years are not within the statute, but will pass by any will which is sufficient to bequeath personalty. 2Atk. 37 i 2 8ro. 58."
[But, this must be understood with some distinction. A term, not in gross, but vested in trustees to attend the inheritance, so follows the nature of the latter, that, if the owner makes a general devise of the land by a will not so attested as to pass the inheritance, not even the trust of the term will pass. (Whitchurch v. Whitchurch, 2 P. Wms. 238; 8. C. Gilb. Eq. Rep. 171.) Also, even as to terms tn gross, though a testator, being possessed of such, may transmit them by the same unsolemn kind of will as he might any other personalty; yet he cannot create them by will, without observing all the forms essential to a devise of real estate ; because the interest in right of which the testator creates the term is real estate, and creating the term is a partial devise of it. (Mr. Hargrove's note (3) to Co. Litt. Ill b.)
[Mr. Sugden (in the concluding part of the 2nd section of the 9th chapter of his Treat, on Vend. & Purch.) observes, that a term for years attendant on the inheritance, whether by express declaration, or by implication, is governed by the same rules to which the inheritance itself is subject. Therefore, such a term cannot pass
by a will not executed according to the statute of frauds. ( Tiffin v. Tiffin, 2 Freem. 66; Villiers v. Villicrt, 2 Atk. 72; Goodright v. Sal**, 2 Wife. 331.) But, Mr. Sugden conceives there are good grounds for holding, that where a term attends the inheritance merely by operation of law, the owner may expressly bequeath it by a will not executed with the solemnities required by the statute; and, in support of this opinion, he refers to 9 Mod. 127, and 2 Collect. Jurid. 276. —ed.]
Mr. Christian adds, that "where the testator is a trustee for the benefit of others, he may devise those lands, or the legal estate, by his will; but the trust estates will not pass by general words, as, all my lands or estates: to pass a trust estate the intention of the testator mast be expressly shown. 6 Ves. Jan. 577."
[The case cited by Mr. Christian merely proves, that a trust estate will not pass under a general residuary disposition, where it can be collected that the testator only intended to give the devisee property which he could enjoy beneficially, as his own. Lord Eldon (in the subsequent case of Lord Braybroke v. Inskip, 8 Ves435,) explains that to be the principle upon which he decided the case referred to by Mr. Christian. It is true, however, that Lord Lough borough (in the earlier case of the Attorney General v. Buller, 5 Ves. 340,) said it was then the understanding, that general words would not pass trust estates, unless there was an apparent intention that they should pass: but he added, the most convenient rule would be the reverse. And the reverse seems now to be fully established. It appears to be quite settled by the later cases, that under a general devise, estates held by the devisor in trust will pass, unless, from the context of the will, or from a disposition not consistent with a limited right, and the nature of trust property, it can be collected that he did not mean to pass such estates. (Lord Brat/broke v. Inskip, 8 Ves. 435; Attorney General v. Vigor, 8 Ves. 276 ; Ex parte Morgan, 10 Ves. 103; Wall v. Bright, 1 Jac. &Walk. 498.) —ed.]
(10) The 6th section of the statute enacts, that no devise of lands shall be revocable otherwise than by some other will or codicil in writing, or other writing, declaring the same ; or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence and by his direction and consent; but all devises and bequests of lands and tenements shall continue in force, until the same be burnt, cancelled, torn or obliterated by the testator, or by his direction; or unless the same be altered by some other will or codicil in writing, or other writing of the devisor signed in the presence of three or four witnesses, declaring the same. This clause has been construed disjunctively ; and it is settled that, although three witnesses are required to attest and subscribe a revocation of a previous will, when such revocation is sought to be effected by a subsequent will or codicil; yet if, by any other writing, the testator intends barely to revoke his will, without more, he may do this effectually by a writing signed in the presence of three witnesses, who need not subscribe their names in his presence, as they must to a will of real estate. (Eccleston v. Speke, Carthew, 81; Hoil v. Clark, 3 Mod. 220; Grayson v. Atkinson,
2 Ves. Sen. 458.) For, however singular the difference between the fifth and the sixth sections of the statute of frauds may appear; and though it be difficult to suppose the legislature meant to institute one mode of revocation so nearly approaching, and yet not exactly conformable to, the mode prescribed for making a disposition of lands; still, as it has specified what shall be sufficient to revoke, the enactment is conclusive. And there is certainly nothing repugnant to the common law, in declaring that an act which might not be sufficient to give, shall be sufficient to revoke. (Ex parte the Earl of Ilchester, 7 Ves. 3/2; Ellis v. Smith, 1 Ves. jun. 13.) But where the revocation of a devise is attempted to be effected by an instrument purporting to be also a will, disposing of the property; if it be not duly executed as such, within the fifth section of the statute of frauds, although such instrument contain express words of revocation, it will not let in the heir; for, the meaning of a second will must be to give to the second devisee what it takes from the first, without any consideration had to the heir; and if the second devisee, owing to the defectiveness of the disposition in his favour, can take nothing, the first devisee will lose nothing. (Onions v. Tyrer, 1 P. Wms. 345; S. C. Prec. in Cha. 460; Eccleston v. Speke, Carth. 80.)
There can be no doubt that the contents, or substance, of a testamentary instrument may be established, though the instrument itself cannot be produced, upon satisfactory proof being given that it was duly made by the testator, and was not revoked by him; the last point may be disposed of, either by showing that the instrument existed after the testator's death; or that it was destroyed in his lifetime without his privity or consent. (Davis v. Davis, 2 Addams, 224; Fatter v. Foster, 1 Addams, 408.) It is also well settled, that, in legal consideration, a will may be cancelled without being revoked. The cancelling is an equivocal act, and, in order to operate as a revocation, must be done animo revocandi. (Burtonthaw v. Gilbert, Cowp. 52; Johnstone v. Johnstone, 1 Phillim. 466; Scruby and Finch v. Fordham, 1 Addams, 78.) Thus, cancelling a former will, on a presumption that a latter, devising the same lands to the same uses, was effective, would be no revocation of the former, if the latter proved to be void. (Onions v. Tyrer, 3 P. Wms. 345.) But, although the cancellation of a will does not necessarily infer an intentional abandonment of the dispotions contained therein, nor, consequently, any intended revocation of the will; Still, this is the ordinary inference : and in order to bar its application to any particular case of cancelling, two things at least are requisite; first, it must be proved that the cancelled paper once existed as a _/fni*Ae<f will; or at any rate one finally approved, if not completely executed, by the testator. (Roose v. Moulsdale, 1 Addams, 131; Warburton v. Burrows, 1 Addams, 388; see, however, Popple v. Cunison, 1 Addams, 381;) secondly, it must be clearly shown that the testator adhered to it throughout in mind and intention, notwithstanding the cancellation: (Lord John Thynne v. Stanhope, 1 Addams, 54 :) restricting, however, this latter dictum, to a certain extent, by the qualification established in Onions v. Tyrer, in cases where a substituted will becomes inoperative.
Where a testator has executed duplicates of his will, and retained one part only in his own possession; if he destroyed that part, the legal presumption would be, that he intended to revoke his will altogether; and the duplicate left in the hands of another would not avail. (Sir Edward Seymour's case, cited 3 P. Wms. 345.) If the testator himself had possession of both parts, the same presumption would hold, though it would be weaker. And even if, having both in his possession, he altered one, and then destroyed that which he hadaltertd, there also, it has been said, the presumption of intended total revocation would exist; but still weaker and more capable of being rebutted. (Pemberton v. Pemberton, 13 Ves. 310.)
Lord Mansfield considered it settled, that, if a man by a second will revokes a former, yet, if he keeps the first will undestroyed, and afterwards destroys the second, the first will is thereby revived: (Harwood v. Goodnight, Cowp. 91 :) considerable doubt, however, has been judicially expressed on this head; and it seems that it must be treated as a question of intention, to be decided according to the circumstances ofeachparticularcase. (Moore v. Metcalfe, Phillim. 400, and on appeal before the court of delegates, ibid. 419; Hooton v. Head, 3 Phillim. 32; Uttickev. Bawden, 2 Addams, 125; Braham v. Burchell, 3 Addams, 268.) A codicil added merely for a particular purpose (such, for instance, as changing an executor, but confirming the will in all other respects,) will not have the effect of setting up again a part of the will which a former codicil had revoked. (Crosbie v. M'Doual, 4 Ves. 616, and com post, p. 379, note.)
The obliteration of part of a will, operates as revocation only pro tanto. (Larkins v. Larkins, 3 Bos. & Pull. 21; Short v. Smith, 4 East, 429; Scruby and Finch v.Fordham, 1 Addams, 78.) But, the obliteration of a codicil may have the effect of cancelling an interlineation in a will, if it clearly appear that the testator, by obliterating the codicil, intended to renounceits object, and not merely the mode of effecting it. (UtPatterson v. Patterson, 3 Ves. & Bea. 123.) And as a codicil is,primAfacie, dependent on the will, cancellation of the will is, generally, an implied revocation of the codicil: there have, indeed, been cases where a codicil has appeared to be so independent of, and unconnected with, the will, that, under circumstances, the codicil has been established, though the will has been held invalid. Such cases have turned upon plain intention, repelling the legal presumption, and showing that the testator designed to leave the codicil operative, notwithstanding the revocation of the will. (Medlycott v. Assheton, 2 Addams, 231.)
circumstances and situation of the devisor, as arises from marriage and the birth of a child (q) (11).
(q) Christopher v. Christopher, mot, De Grey, and Parker. See pag. Scacch. 6 Jul. 1771; Spragge v. Stone, 502. at the Cockpit, 27Mar. 1773, by Wil
A second will being no revocation of a former one, further than as it is inconsistent therewith, (Harwoodv, Goodright, Cowp. 90; S. C. in Dom. Proc. 7 Br. P.C.349, fol. ed.,) it will not be enough to prove that a second will was made, without producing it, and showing it to be not merely different from, but incompatible with, the former. Otherwise, the fraudulent suppression of a second will, which was intended merely as a confirmation, might be made to operate as a revocation. (Hitchim v. Basset, 3 Mod. 208, affirmed in Dom. Proc. Show. P. C. 149.) It would be an untenable position, to maintain that a devisor, by making a second will in terms large enough to include all his property, must, necessarily, have meant to revoke a former will:
to have this effect, it must be shown that, the disposition of the property made by the two wills is inconsistent. It would be an assumption of what is not a necessary consequence, to say that, by his second will, the testator must have intended either to confirm, or to revoke, the dispositions contained in the first will: there is a third proposition,—he might not have contemplated to do either, but to make a mere collateral disposition. (Thomas v. Evans, 2 East, 494.)
Certainly, where a testator has by a codicil expressly revoked the whole of a previous devise, and has declared over again all the trusts, it is in his new disposition alone that the testamentary title to his property must be sought. There may be strong ground for supposing, that it was by a mere slip he omitted to dispose of part by the codicil as he had done by his will; but this omission no court can supply. (Holder v. Howell, 8 Ves. 103.)
However, where an instrument revoking bequests, bears, upon the face of it, evidence that it was entirely grounded upon misinformation or mistake, the bequests made by the will remain good. (Camplicll\. French, 3 Ves. 323. See 1 Hovenden on Frauds, 296, d "r, where the doctrine of revocation is treated more at length.)
(11) Revocation of wills disposing of lands, may be implied by operation of law, notwithstanding the statute of frauds, and without reference to the intent of the testator. (Cave v. Holford, 3 Ves. 653; Brydges v. Duchess of Chandos, 2 Ves. jun. 430.) Thus, the least alteration or new modelling of the devised estate, subsequently to the will, operates as a revocation. (Sparrow v. Hardcastle, 3 Atk. 802; Williams v. Owetu, 2 Ves. jun. 599.) And if a devisor, after making his will, puts the whole interest in the lands devised out of himself, by any conveyance whatever, it is a revocation, although he immediately takes back the very same estate; (Parsons v. Freeman, 3 Atk. 747; Vaurser v. Jeffery, 2 Swanst. 274. See ante, p. 357, note (13) to chapter 21 ;) or, although without express limitation, it results to him. (Harmood v. Oglander, 6 Ves. 222; Cave v. Holford, 3 Ves. 659. See ante, p. 296, with note (1) to chapter 20.) Upon the same principles, a binding contract for the sale of lands devised is, in equity, as much a revocation as a conveyance of the lands would be at law. (Cotter v. Layer, 2 P. Wms. 624; Attorney General v. Vigor, 8 Ves. 289.) The will, it seems, would not be set up again, even by an abandonment of the contract in the testator's lifetime. (Bennet v. Earl of Tankerville, 19 Ves. 178.)
Decisions on the Jn the construction of this last statute, it has been ad
the statute. j udged that the testator's name, written with his own hand,
It should be observed, that, if the owner of an unqualified equitable fee devises it by will, and afterwards takes a conveyance of the unqualified legal fee, this is no revocation, because the conveyance was incident to the equitable fee; just as a partition is no revocation, because incident to the estate of tenants in common; (see ante, p. 185 ;) though, as before observed, any qualified conveyance of the legal fee, or the least addition to the mere object of partition, however slight the modification, would operate a revocation. ( Ward v. Moore, 4 Mad. 372; Rose v. Conynghame, 11 Ves. 554; Knollyt v. Alcock, 7 Ves. 564; Rawlins v. Burgess, 2 Ves. & Bea. 387.)
If a conveyance be. intended only for a particular limited purpose, (supposing that purpose is merely to give
a security for money, Vavaer r. Jeffery, 2 Swanst. 273; Brain v. Brain, 6 Mad. 228,) this will not revoke a previous devise of the estate so conveyed, further than is necessary for that express purpose. (Parsons v. Freeman, 3 Atk. 748.) Upon this ground, a devise of real estate is not held to be revoked merely because a commission of bankruptcy has issued against the testator; for, the bankrupt laws take the property out of the bankrupt only for the purpose of paying his creditors; and from the moment the debts are paid, the assignees are mere trustees for the bankrupt. (Charman v. Charman, 14 Ves. 585.) Thus, also, if a person mortgage an estate which he has devised, although such mortgage be not merely by lease and release, but by fine, this, in equity, will be a revocation only pro tanto. (Osborne v. Searfe, 1 Atk. 606; Rider v. Wager, 2 P. Wms. 334.) Even a mortgage in fee to the devisee, does not revoke the devise. (Baxter v. Dyer, 5 Ves. 664.) Upon similar reasoning, a subsequent lease does not revoke, though it qualifies, a previous devise of the property. (Lambe v. Parker, 2 Freem. 284; Doe v. Wegg, 6 T. R. 710.) The case would be the same, although re lease were made to the devisee himself; for the devisor might naturally choose to reserve a rent during his lifetime: but this reason would fail if the lease were made to commence after the testator's death;— that would be a revocation of the devise in toto, for the two dispositions would be altogether inconsistent. (Cokey. Bullock, Cro. Jac. 49; Hodgkinson v. Wood, Cro. Car. 24.)
A feoffment of lands, previously devised, may fail, for want of due livery of seisin; yet, the intent of the feoffor being apparent, the devise will