time, and not before, the testament becomes operative. Flintham v. Bradford, 10 Pa. 82; Peck's Appeal, 50 Conn. 562, 47 Am. Rep. 685; Simmons v. Simmons, 26 Barb. (N. Y.) 77; and cases cited supra. We are cited to the statute (section 5793, How. St.) which provides: "No will, nor any part thereof, shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator or by some person in his presence and by his direction, or by some other will or codicil, in writing, executed as prescribed in this chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will." And it is urged, with much show of plausibility, that the execution of a new will operates, under this statute, to revoke the former will. Such, however, is not the strict reading. If, at the common law, a will duly executed is ambulatory, and is held, for the purposes of this question, to take effect only at the death of the testator, we think the statute should be construed as having reference to the common-law rule. The revocation may be by some other will, but it occurs when the will takes effect, not when executed. This statute no more than declares the common law on the subject. * * * 2. The burden of proof is upon a party who asserts that the later will contains a clause of revocation. Thornt. Lost Wills, 162; 1 Beach, Wills, 73; Caemen v. Van Harke, 33 Kan. 333, 6 Pac. 620. * * * Other questions are presented by the appeal of the contestants, which we have examined, but deem it unnecessary to discuss in this opinion. We think no error was committed to the prejudice of the 22 Compare Darley v. Jefferson, 150 Mich. 590, 114 N. W. 470, 121 Am. St. Rep. 640 (1908). But in Dougherty v. Holscheider, 40 Tex. Civ. App. 31, 88 S. W. 1113 (1905), a contingent holographic will, which never became effective because the contingency on which it was to do so did not happen, but which was inconsistent with a prior will, was held to have revoked the prior will, and to have made such will ineffective without a republication. In Newton v. Newton, 12 Ir. Ch. 118 (1861), it was held that a will revoked absolutely by another will and thereafter destroyed by the testator could not be revived by a codicil, though the codicil. by seeking to revive it, evinced, in the opinion of the court, an intention that a subsequent will should not remain a will. The court said: "The will itself had been destroyed. It was as if it had never existed. It was no longer in rerum natura, and could not, therefore, be incorporated with the codicil." In Rogers v. Goodenough, 2 Sw. & Tr. 342, 350 (1862), the court said that the provision of the Wills Act that "no will shall be valid unless it be in writing and executed in the manner hereinafter mentioned" is decisive of that question, because "the expression 'no will shall be valid' applies equally to an original will and a revived will." See, also, Hale v. Tokelove, 2 Rob. Ecc. 318 (1850); In the Goods of Steele, L. R. 1 P. & D. 575, 576, 577 (1868). WILLIAMS et al. v. WILLIAMS. (Supreme Judicial Court of Massachusetts, 1886. 142 Mass. 515, 8 N. E. 424.) C. ALLEN, J.23 There was proof, satisfactory to the mind of the justice who heard the case, that the testator, in canceling his last will, intended to revive the former one, which he then left uncanceled; and his conclusion of fact was well warranted by the evidence. Such proof may come from a single witness (Brown v. Brown, 8 El. & Bl. 876; Burns v. Burns, 4 Serg. & R. [Pa.] 297); and, being found sufficient to establish the fact, the legal result follows that the former will is thereby revived (see Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322, and authorities there cited; 2 Am. Lead. Cas. [4th Ed.] 709 et seq.). The fact that the testator executed three wills at different times, all of which were kept by him for a time uncanceled, and that when he executed the third will he said that he would keep them all until he made up his mind which he wanted to keep, and would destroy the two he did not want, did not have the legal effect to place the three wills on an equal footing of unexecuted and unpublished wills. The last will, if left unrevoked, would be valid. Decree affirmed. JAMES v. SHRIMPTON. (High Court of Justice, Probate Division, 1876. 1 P. D. 431.) Sir J. HANNEN (President).23 This case was tried before me, and the following facts were proved: On the 12th of October, 1871, the testator duly executed his will, and on the 3d of July, 1872, he married, whereby his will was revoked. On the same day, and after his marriage, he executed a codicil, in which he made a provision for his wife; and the codicil contained a clause to this effect: "In all other respects I revive, ratify, and confirm my said will." Afterwards circumstances occurred by reason of which the provisions of the codicil failed, and it is probable that he then destroyed it. The question for my consideration is, whether the destruction of the codicil upon which the revival of the will depended has left the will inoperative. I am of opinion that it was not the intention of the testator to leave the will inoperative, but his idea was, that the will, having been brought into existence again, remained valid notwithstanding the destruction of the codicil. I was asked to grant probate of the will and codicil on the presumption that what the testator had done had not been done animo revocandi. Where there has been a physical destruction of a testamentary paper the court has often been 23 The statement of facts is omitted. called upon to form an opinion as to the intention of a deceased at the time he did the act. In this case I have come to the conclusion that the testator destroyed the codicil with no intention of revoking the will, and that the court should give no more effect to the act than it would do if the testator had destroyed the paper under a mistake as to the instrument he was destroying. It was done under a misconception of the effect of the act; it was not done animo revocandi, and I therefore decree probate of the will and codicil. CROSBIE v. MACDOUAL. (High Court of Chancery, 1799. 4 Ves. 610.) See ante, p. 352, for a report of the case. GREEN v. TRIBE. (High Court of Justice, Chancery Division, 1878. 9 Ch. D. 231.) See ante, p. 354, for a report of the case. In re CAMPBELL. (Court of Appeals of New York, 1902. 170 N. Y. 84, 62 N. E. 1070.) See ante, p. 359, for a report of the case. PART II DESCENT CHAPTER I THE NATURE OF DESCENT SECTION 1.-DESCENT AND CONSANGUINITY BLACKSTONE ON DESCENT. "The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: Descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement. "Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor; and an estate, so descending to the heir, is in law called the inheritance. * 1 The word "descent" is here used in its technical sense. In some states it is given a wider meaning. "It is true that the word 'descent,' in its technical, legal meaning, denotes the transmission of real estate, or some interest therein, on the death of the owner intestate, by inheritance, to some person according to certain rules of law. In such meaning it is distinguished from transmission by devise, which is technically by purchase, and also from the transmission of personal property, the title of which passes to the administrator, and, after the payment of all debts and claims against the estate, is governed by certain rules of distribution. If the meaning of the term 'descent' is so limited to its technical significance, the provisions of the act relating to the distribution of personal estate are not within such meaning. The term as used in the act, and as it has always been used in our statutes, includes the course of transmission, by operation of law, of both real and personal property when the owner dies intestate, or his estate or any part thereof is deemed and taken as intestate estate." Cartwright, J., in Hudnall v. Ham, 172 Ill. 76, 83, 84, 49 N. E. 985, 987 (1898). On the statutes of descent and distribution, in the United States, see 3 Prob. Rep. Ann. 556, note. On succession to estates of intestates in general, see 12 Am. St. Rep. 81-113, note. "Consanguinity, or kindred, is defined by the writers on these subjects to be 'vinculum personarum ab eodem stipite descendentium'; the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral. "Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards. The father of John Stiles is related to him in the first degree and so likewise is his son; his grandsire and grandson in the second; his great-grandsire and greatgrandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil and canon, as in the common, law. * * * "This lineal consanguinity, we observe, falls strictly within the definition of vinculum personarum ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor. "Collateral kindred answers to the same description; collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestors, but differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who hath each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos. "We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father. Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin's claim to consanguinity is this, that they are both derived from one and the same grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. * * * "The method of computing these degrees (of collateral consanguinity) in the canon law, which our law has adopted, is as follows: We begin at the common ancestor, and reckon downwards; and in whatsoever degree the two persons, or the most remote of them, is COST.WILLS-25 |