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CHAPTER III.

OF REVOKING THE WILL.

That a man may alter and make void his will at pleasure, and although he may have made his last will and testament irrevocable in the strongest words, he is at liberty to revoke it a, most people seem apprised of; but how a will may be revoked by acts in law and alteration of circumstances, very few persons have a just conception: and as many, after having made their will, have made alterations in their estate, and died without altering or republishing their will, and thereby left their estates and effects open to dispute and litigation; we shall here, after having attended to the statute 29 Car. II. point out various acts that may be done by a testator, so as to occasion either a total or partial revocation of his will; and then make some observations on the means whereby the revocation might be rectified, and on the nature and effect of a codicil, and the republication of a will; and conclude the head with shewing how, in various cases, a person may die both testate and intestate, and thereby part of his estate be disposed of by himself, and the other part by the law.

By statute 29 Car. II. c. 3. it is enacted that no devise in writing of lands, tenements, or hereditaments, or any clause thereof, 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 directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, cancelled, torn, or obliterated by the testator or by his directions in manner aforesaid, or unless the same be

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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. And that no will in writing concerning any goods, chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein be altered or changed by any words or will by word of mouth only; except the same be in the lifetime of the testator committed to writing, and after the writing thereof read to the testator and allowed by him, and proved to be so done, by three witnesses at the least.

That a will may be effectual for passing lands, the same must be subscribed by three witnesses in the presence of the testator, as was shewn in the preceding chapterb. So for revoking such a will within the words of the statute, it must be by a will attested by three witnesses, and subscribed by them in the presence of the testator c (1).- A man makes his will duly executed and attested, and at the same time in like manner executes a duplicate thereof. Sometime after, having a mind to change one of his trustees, he orders his will to be written over again, without any variation: whatsoever from the first, save only in the name of that trustee. And when it was so written over, he executes it in the presence of three witnesses, and the three witnesses subscribed their names, but not in his presence. After this the b Page 203.

Eccleston v. Speak, Carth. 81.'

(1) This position is not strictly correct, for the words “ signed in the presence of three or four witnesses" contained in the 6th section of the 29 Car. 2. c. 3. have been holden to refer to the next preceding words “ other writing" only, and not to the words “ will or codicil in writing," and consequently it is not necessary that a will, whereby a former will is revoked merely, should be signed by the devisor in the presence of three witnesses. See Hoil v. Clerk, 3 Mod. 218, recognised by Lord Hardwicke in Ellis v. Smith, 4 Burn. Ecc. Law, 199. There does not appear to have been any case decided upon an instrument of revocation, intended merely to operate as such, and not as a devise.

· testator cancels the duplicate, by tearing off the seal, and then dies. The question was, whether this second will not being good as a will to pass lands, should yet be a revocation of the first ; and if it should not, whether the cancelling the other should be a revocation thereof within this statute. And it was decreed, that neither the making the second, nor the cancelling of the first, was a revocation thereof, though in the second there was an express clause that he did thereby revoke all former and other wills : wherein the Lord Chancellor took this distinction, that the second was not intended barely a revocation of the first, so as to signify his intention of dying intestate ; but it was intended as an effectual will to pass the lands to the persons, and in the manner thereby devised; and therefore if it was not good as a will to that

purpose, it was no revocation of the first d (2). · Mr. Cox, commenting on the case just now cited, says, On the first head the act of cancelling was not sufficiently proved, but yet it is determined by this case as well as by Burtenshaw v. Gilbert, Cowp. 49. (which fully recognizes the principles of Onions v. Tyrer), that the cancelling is in

... Onions v. Tyrer, 1 P. Will. 343.

(2) The law upon this subject was ably explained by Lord Chief Justice Dallas, in a late case, in which his Lordship thus expressed himself: “I take the rule to be, that where a “ testator designs to revoke a former will by an instrument " making new dispositions of his property, he discovers only 6 a conditional intention to revoke; or, in other words, his .“ intention to revoke is so coupled, in appearance, with his .66 new testamentary act, that unless he completes such act :* by observing the formalities requisite to its perfection, he is “ not looked upon in law as manifesting a deliberate purpose 6 of revoking. The true distinction, therefore, is, that where 6 there is evidence of an intention to revoke, if that in6 tention has not been completely carried into effect, the “ first will shall stand unrevoked, even though the disposi6. tions of the second be ever so inconsistent with the for6 mer.” Winsor v. Pratt, 5 B. Moore, 497.

itself an equivocal act, and, in order to operate as a revocation, must be done animo revocandi (with intention of revoking] (3). On the second head, with respect to revocation by subsequent devise, it is necessary that the second will should expressly revoke or be clearly incompatible with the first devise, quoad [as to] the particular subject matter of such devise, for no subsequent devise will revoke a prior one unless it apply to the same subject matter. Hardwood v. Goodright. It is also necessary that the second will should

(3) Therefore if the devisor were to throw the ink upon his will instead of the sand, although it might be a complete defacing of the instrument, it would not be a cancellation; or suppose a person having two wills of different dates by him, should direct the first will to be cancelled, and, through mistake, the person to whom the devisor gave his directions, should cancel the last will ; such an act would not be a revocation of the last will : or suppose a person having a will consisting of two parts, throws one unintentionally into the fire, where it is burnt, it would be no revocation of the devises contained in such part. Hyde v. Hyde, 1 Eq. Ca. Abr. 409. S. C. 3 Cha. Rep. 155. However in order to effectuate a revocation by cancellation, it is not necessary that the will should be actually destroyed; hence, a slight tearing of a will, and throwing it on the fire, with a deliberate intent to consume it, by the testator, though it fell off and was preserved by a byestander without his consent or knowledge, has been holden to be a sufficient revocation. Bibb d. Mole v. Thomas, 2 Bl. 1043. But to operate a revocation the act of cancellation must be complete ; for if a testator, conceiving the intention of cancelling his will, proceed to carry that intention into effect, but before his object is, in his own imagination, fully accomplished, he changes his purpose, the act not having been completed will not be sufficient to destroy the validity of the will. Doe v. Perkes, 3 Barn. & Ald. 489. In all these cases it is the intention which must govern, and parol evidence is admissible to explain it. Cowp. 53. If a will be destroyed during the lifetime of the testator, and without his knowledge, it will be substantiated upon satisfactory proof thereof and of its contents. Trevelyan v. Trevelyan, 1 Phillim. 149...

be subsisting and effective at the time of the death of the testator. If therefore it be not executed according to the statute of frauds, it is not effective, and it is as if no second will had existed, as in the present case of Onions v. Tyrer, (and yet a devise of lands void in respect to the incapacity of the devisee to take, shall revoke a former devise. So shall a subsequent grant to a person incapable of taking.) So, if the second will be effectively cancelled in the lifetime of the testator, the first will shall operate as if no other had existed, for it is the only will subsisting at the testator's deathe (4).

As concerning acts that may be done by a testator so as to occasion either a total or partial revocation of his will, it should be observed, that the above-mentioned statute has not taken away revocations of last wills by acts in law; as if the testator should afterwards make a feoffment or convey. ance contrary to the will, or any other act inconsistent with it, but such revocations remain as they were before the making this statute f; and an alteration of circumstances may be a revocation of a will notwithstanding this statute, which does not extend to implied revocations ; as it hath been held, that, without an express revocation, if a man who hath made his will afterwards marries and has a child, this is a presumptive or implied revocation of his former will which he made in a state of celibacy h. From Brady v. Cubitt, Doug. 30. (which collects the other cases upon this subject) it appears that no change in the situation of a testator can amount to more than a presumptive revocation of a devise of lands, and consequently that evidence is admissible

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(4) But the particular circumstances of the cancellation and of the case must be attended to; for in a modern instance where a second will was mutilated so as to amount to a cancellation, such cancellation was held not to revive a prior will of nearly similar import. Moore v. Moore, 1 Phillim. 375. 406.

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