72

always revoked a former will without an express revocation. The Statute of Frauds, incorporated in the first Statute of Wills of this State, simply gave expression in this respect to the existing law of England.73

The Revised Statutes and Their Re-enactment. A written will can now be expressly revoked in writing by another will, or by a writing executed by the testator with all the formalities required by the statute for the execution of a last will and testaAn informal writing will not operate as a revocation. An express revocation by writing may now be partial, but not so when by cancellation or partial destruction.75

Revocation under Section 39 of this Act. There is a curious exception to the universality of express revocations in writing, now stated in section 39 of this act, and one very apt to be overlooked by the decisions which treat of express revocations in writing. This comes from the revisers' attempt to make all former implied revocations "express revocations," for all former implied revocations are now classed as express revocations" from the point of view of the cases cited in the preceding paragraphs; all implied revocations being held abolished.

66

Who May Revoke Wills. Any act of revocation under this section requires the testamentary capacity, considered under sections 10 and 15 of this act, and if that capacity be lacking, the later will, or written declaration of revocation, is wholly inopera

76

723 Wils. 511, 512; 3 Mod. 206; Y. B. 2, R. 3, f. 3, cited I Powell Devises, 517, 815.

73 Lovelass on Wills, 344; Dan v. Brown, 4 Cow. 483; Simmons v. Simmons, 26 Barb. 68, 74; Waterman v. Whitney, 11 N. Y. at p. 160.

74 Langdon v. Astor's Executors, 16 N. Y. at pp. 38, 39; Matter of Stickney, 161 id. 42; Burnham v. Comfort, 108 id. 535. 540; Nelson v. Public Adm., 2 Bradf. 210; Leay

craft v. Simmons, 3 id. 35; Barry v. Brown, 2 Dem. 309; Biggs v. Angus, 3 id. 93; Ordish v. McDermott, 2 Redf. 460; Mairs v. Freeman, 3 id. 181; Matter of Miller, 50 Misc. 70; Matter of Akers, 74 App. Div. 461. Cf. § 39, Decedent Estate Law; Matter of Johnston, 69 Hun, 157, 23 N. Y. Supp. 355.

75 Lovell v. Quitman, 88 N. Y. 377. 76 Supra, pp. 50, 78.

tive as a revocation." A revocation procured by fraud or duress is also a nullity.78

Revocation by Other than Testamentary Instruments. When a prior will is not revoked by a testamentary instrument, such as a subsequent will or codicil, but by an independent writing declaring such revocation, it is sufficient if such independent writing be executed with the same formalities as a will.79 A deed may contain a declaration of revocation, if it is executed according to the statute regulating wills; the name of the instrument containing the revocation is immaterial.80 A written revocation may be indorsed on the will and if properly executed and published satisfies the statute.81 We have already alluded to a curious exception to the rule stated in this section, that testamentary instruments can be revoked only by a written instrument of as high a nature as a will, i. e., executed with the same formalities; for under section 39 of this act any declaration contained in an instrument sufficient to alter an estate will suffice in connection with such alteration.82

Will Once Revoked. A will once revoked by a formal revocation remains so revoked, even though the revocation itself is revoked and thus canceled.83 The revocation of the revocation does not operate to revive the original will. The same rule prevailed

77 Delafield v. Parish, 25 N. Y. 9, 60; Smith v. Wait, 4 Barb. 28; Matter of Goldsticker, 123 App. Div. 474, 192 N. Y. 35; Matter of Waldron, 19 Misc. 333; Matter of Forman's Will, 54 Barb. 274, affg. I Tuck. 205.

78 Voorhis v. Voorhis, 50 Barb. 119, affd. sub. sub. nom Vorhees v. Vorhees, 39 N. Y. 463.

798 34, Decedent Estate Law.

So Matter of Backus, 49 App. Div. 410; Nottbeck v. Wilks, 4 Abb. Pr. 315, 320; Arthur v. Arthur, 10 Barb. 9, 21. Cf. 39, Decedent Estate

Law.

81 Biggs v. Angus, 3 Dem. 93. Cf. 39, Decedent Estate Law.

82 See 839, Decedent Estate Law.

Cf. Matter of Goldsticker, 192 N. Y. at p. 37.

83 Matter of Goldsticker, 192 N. Y. 35, 37; Estate of Colligan, 5 N. Y. Civ. Pro. Rep. 198; Matter of Stickney, 31 App. Div. 382, 161 N. Y. 42; Biggs v. Angus, 3 Dem. 93; Matter of Myers, 28 Misc. 359, 361; Matter of William, 34 id. 748; Matter of Brookman, 11 id. 675; Matter of Cunnion, 135 App. Div. 864; $ 41, Decedent Estate Law. Cf. Matter of Johnston, 69 Hun, 157, evidently overruled. 84 § 41,

Decedent Estate Law; Matter of Goldsticker, 192 N. Y. at p. 37. cf. Matter of Campbell, 35 Misc. 572.

before the Revised Statutes.85 In case the subsequent testamentary revocation is lost, it seems its contents may be proved by the testimony of a single witness, and that the statute relating to the establishment of lost wills does not apply.se

87

89

Written Testamentary Revocations. An express revocation in writing may be partial or entire. Whether the revisers of the Revised Statutes intended by this section materially to alter the former law governing express revocations may be regarded as doubtful. Their announced reforms related to implied revocations only.ss As before the Revised Statutes, so since then, a later and inconsistent will, even without a clause of express revocation, operates as a pro tanto revocation of a prior will. And it seems that even if the inconsistent provision of the later will is ineffectual, by reason of some disability of the devisee or legatee to take, such provision nevertheless is operative as a revocation.99 A recent case presents a curious instance of a constructive revocation by a later disposition, for the bequests were not inconsistent on their face, but cumulative, and yet the court held the former will revoked by the later provisions.91

92

The mere lapse of a legacy or devise is not a revocation. The question of revocation by failure of a devise or legacy to vest does not arise on a proceeding to probate.93

85 Viner's Abr., tit. Devise, R. 3, p. 141; 10 Bacon's Abr. 556.

86 Matter of Goldsticker, 192 N. Y. at p. 37; Estate of Colligan, 5 N. Y. Civ. Pro. Rep. 198; Matter of Wear, 131 App. Div. 875; Colligan v. McKernan, 2 Dem. 421; sed. cf. Matter of Duke, 75 App. Div. 403; Matter of Myers, 28 Misc. 359; Matter of Williams, 34 id. 748.

87 Lovell v. Quitman, 88 N. Y. 377, 381.

88 See Reviser's Notes, Appendix II, infra.

89 Brant v. Wilson, 8 Cow. 56; Simmons v. Simmons, 26 Barb. 68; Viele v. Keeler, 129 N. Y. 190, 199; Campbell v. Logan, 2 Bradf. 90, 94;

Canfield v. Crandall, 4 Dem. 111; Matter of Gilman, 56 Misc. 409. Cf. Ludlum v. Otis, 15 Hun, 410; Matter of Myers, 28 Misc. 359; Simmons v. Simmons, 26 Barb. 68, 74, as to complete revocations of prior wills by later wills.

90 Canfield v. Crandall, 4 Dem.

III.

91 Matter of Gilman, 65 Misc. 409. 92 Matter of Davis, 105 App. Div.

222.

93 Matter of Davis, 105 App. Div. 221, 224, 225; Ex parte Lindsay, 2 Bradf. 204. Cf. Matter of Essig, 63. Misc. 612; Campbell v. Logan, 2 Bradf. 90, 94.

Where in a later will there is an imperative express revocation, or an unqualified clause revoking all former wills, the consistency or inconsistency of the provisions of former wills with the later will containing the revocation is immaterial. The clause of revocation satisfies the statute." 94

Revocation by Codicil. A prior will may be partly or entirely revoked by a codicil,05 and such revocation may be either express, or by reason of inconsistency, and this is recognized practice under this section of the present act.96 Whether the revocation of a will also revokes a codicil is a more obscure question." But it has been held in this State that the revocation of a codicil revokes a will where the codicil standing alone is unintelligible without the will.98 The same reasoning would seem to apply where the will alone was revoked.

A revocation of a will by a codicil may be either express and entire, or partial and constructive. If the provisions of a codicil are so inconsistent with the provisions of a will as to be irreconcilable, the codicil, as the later declaration of intention, must prevail and constructively repeals the earlier and inconsistent provision. But a constructive revocation operates no further than is necessary, and an intention to alter a will in one particular negatives an intention to alter it in any other respect.""

Revocations by Destruction or Mutilation. Having considered written revocations, we pass to the second mode of revocation, expressly prescribed by the Statute of Frauds and its re-enactment in the several Statutes of Wills of this State, viz., burning, tearing, canceling, obliterating, and destruction by the testator himself. Under the old Statute of Frauds the sixth clause relative to the destruction of devises was extended to wills of personalty by the courts. The Revised Statutes placed this construction in the stat

94 Matter of Thompson, 11 Paige, 453; Nelson v. McGiffert, 3 Barb. Ch. 158, 164; Matter of Barnes, 70 App. Div. 523, 527; Matter of Wear, 105 id. 875. Cf. Van Wert v. Benedict, 1 Bradf. 114, 121.

95 See a codicil defined above, pp. 2, 47, 135.

96 34, Decedent Estate Law.

97 Matter of Brookman, 11 Misc. 675, 676.

98 Matter of Brookman, II Misc. 675.

99 See under § 21, supra, p. 195; Newcomb v. Webster, 113 N. Y. 191; Matter of Gilman, 65 Misc. 409.

ute itself, and there is now no distinction in respect of revocations of devises and of wills of personal property. Revocations of either are performed in the same modes.

Revocation by destruction is always a matter of intention and fulfilment,' and consequently to make out an express revocation by the burning, the cancellation, or the destruction of a testamentary paper, the court must perceive that such acts were done animo revocandi Animus revocandi, in connection with the factum of destruction may be proved as a fact, either directly,3 or indirectly and circumstantially. Evidence in some form is generally admissible to show quo animo such an act was performed." Thus, even the declarations of the testator are competent, if part of the res gestæ, in connection with the act itself, and not prior or subsequent thereto." But animus revocandi without a destruction is not a revocation."

Burning. A revocation by testator's burning a testamentary paper, duly executed, must be done animo revocandi. If the burning is accidental or by mistake, animus revocandi is lacking, and there is no revocation. Burning always contemplates a complete, and not a partial, destruction of a will: so that where this mode of destruction is employed no question ever arises of an attempt to partly revoke a testamentary instrument. But should, by any chance, a testator attempt to burn out one clause or devise or bequest of a will, it would be ineffectual in law as a revocation.10 To make a revocation by burning effectual, the act must be actually performed; mere direction is not enough.11

11 Jarman on Wills (6th ed.), 153; Smith v. Wait, 4 Barb. 28; Waterman v. Whitney, 11 N. Y. 157, 161.

24 Kent Comm. 531, 532; Dan v. Brown, 4 Cow. 483; Sweet v. Sweet, 1 Redf. 451, 454.

3 Waterman v. Whitney, 11 N. Y.

157.

44 Kent Comm. 532.

51 Jahman on Wills, 115; Jackson v. Holloway, 7 Johns. 394; Jackson v. Betts, 6 Cow. 377.

6 Waterman v. Whitney, 11 N. Y. 157, 162; Sweet v. Sweet, 1 Redf. 451, 454.

7 Delafield v. Parish, 1 Redf. 1; Matter of Curtis, 135 App. Div. 745,

747.

81 Jarman on Wills, 115 (1st ed.); Birkenshaw v. Gilbert, Cowp. 52; I P. W. 346; Sweet v. Sweet, I Redf. 451, 454; Matter of De Groot, 18 Civ. Pro. Rep. 102.

9 See Matter of Stickney, 31 App. Div. 382, 161 N. Y. 42. Cf. Matter of Curtis, 135 App. Div. 745.

10 Lovell v. Quitman, 88 N. Y. 377; Matter of Curtis, 135 App. Div. 745. 11 Giles' Heirs v. Gill's Executors, Conf. Rep. 174; 10 Bacon Abr. 546.