1 Vict. c. 26,

8. 20.

the testator has set his hand to the preceding pages, a testator makes the signatures on those pages a part of his will, and if having so recited he afterwards, animo revocandi, tears off the signatures from the preceding pages, it is a good revocation of the whole will under this section. (Williams v. Tearing off signaTyley, Johns. 530.) A will, dated in 1835, was held to have been revoked by the testator in 1838 cutting out his signature. (Hobbs v. Knight, 1 Curt. 768; Walker v. Armstrong, 21 Beav. 305, on appeal, 4 W. R. 770.)

tures.

A testator cut out of his will the names of the attesting witnesses, giving Signatures 1eas his reason that he had some idea of altering it and having a new will placed. made, and afterwards on the same day replaced the piece so cut out, saying that the will would do for the present. The court upon motion, with the consent of the persons interested in case of intestacy, granted probate. (In bonis Eeles, 32 L. J., Prob. 4. See In bonis De Bode, 5 Notes of Cases, 189.) Where the signature of the testator to a will had been cut out, but gummed on to its former place, the will was not admitted to probate (Bell v. Fothergill, L. R., 2 P. & M. 148); but where a testator partially erased his own signature, and then re-wrote it, probate was granted. (lie Kennett, 2 N. R. 461.)

A will is not destroyed within this section by being struck through Cancelling. with a pen, the name of the testator being crossed out and the names of the attesting witnesses being struck through. It was said by Sir H. Jenner, that when the legislature, after mentioning "burning" a will, and "tearing" a will, speaks of "otherwise destroying" a will, they must be understood as intending some mode of destruction ejusdem generis, not an act which is not a destroying in the primary meaning of the word, though it may have the same metaphorically, as being a destruction of the contents of the will; it never could have been their intention that the cancelling of a will should be a mode of destroying it. (Stephens v. Taprell, 2 Curt. 465. Re Brewster, 6 Jur., N. S. 56.) A testatrix obliterated, with the intention of revoking, several passages of her will, so that none of the parts obliterated could be distinguished upon the face of the will: it was held, that this was a complete revocation of those parts within this section. (Townley v. Watson, 3 Curt. 761.)

If the act of destruction be done by any person other than the testator, Destruction by it must be by the testator's order and in his presence. Where a codicil any person other was burnt by a testator's order, but not in his presence, probate was granted than the testator. of a draft copy. (Re Dadds, D. & Sw. 290.)

;

After the due execution of a will has been proved, the burden of Onus of proof of proving that it was revoked lies upon those who set up the revocation revocation. and in the absence of evidence, revocation will not be presumed. (Benson v. Benson, L. R., 2 P. & M. 172.)

death;

But where a will remains in the custody of the testator from the time Will in testator's when it is made until his death, and cannot then be found, the presump- custody not forthtion of law is, that it was destroyed by the testator, animo revocandi coming at his (Eckersley v. Platt, L. R., 1 P. & M. 281); but the court must be satisfied that the will was not in existence at the time of the testator's death. (Finch v. Finch, L. R., 1 P. & M. 371.) To rebut the presumption, declarations made by the testator that he has settled his affairs and appointed executors, and as to the person in whose possession the will is, are admissible in evidence. (Whiteley v. King, 17 C. B., N. S. 756; 13 W. R. 83.) The presumption does not apply to a case where the testator became insane after the execution, and continued insane until his death. (Sprigge v. Sprigge, L. R., 1 P. & M. 608.)

Where a will in the custody of a testator is found after his death muti- found mutilated lated, the presumption in the absence of evidence is that it was mutilated at his death. by him after its execution, and, if there be a codicil, after the execution of the codicil. (Christmas v. Whinyates, 11 W. R. 371.)

Where a will is executed in duplicate, the presumption is that the Duplicate will. destruction of one part revokes the other. (1 Wms. Exors. 148.)

Under the old law before this statute, it was held that a codicil stands Revocation of or falls with the will to which it belongs; and it has been held under the codicils. new law, that where a will has been revoked, probate of the codicil will

1 Vict. c. 26,

8. 20.

Revocation by married woinan.

No alteration in a will shall have

any effect unless executed as a

will.

Presumption as to

in wills of personalty;

not be granted, unless the court is satisfied that the testator intended the codicil to operate separately from the will. (Re Greig, L. R., 1 P. & M. 72. See Re Ellice, 12 W. R. 353.) But it is now settled that a codicil can only be revoked by one of the modes indicated in this section, and is not revoked by the revocation of the will. (Re Savage, L. R., 2 P. & M. 78; Re Turner, ib. 403; Black v. Jobling, L. R., 1 P. & M. 635.)

A married woman may revoke a will made under a power in any of the modes pointed out by this section. Hawksley v. Barrow, L. R., 1 P. & M. 147.)

21. No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will (z).

(z) Where certain erasures appearing in a will of personalty were omitted in the probate, the Court of Chancery in construing the will ordered the original will to be produced, notwithstanding an objection that the probate alone could be looked at. (Manning v. Purcell, 7 De G., M. & G. 55. See 1 Wms. Exors. 539, 540.)

Where a will contains alterations and erasures affecting the amount and time of alterations objects of the testator's bounty, the existence of which at the time of the execution the attesting witnesses cannot depose to, in the absence of all direct evidence as to the alterations and erasures, the presumption of law is that such alterations and erasures were made after the execution of the will, and probate of the will was granted in its original form. (Cooper v. Bockett, 4 Moo. P. C. C. 439.) Where an expert deposed that in his opinion some trifling alterations and interlineations appearing on the face of a will were written at the same time as the rest, they were admitted to probate (Re Hindmarch, L. R., 1 P. & M. 307; Moore v. Moore, I. R., 6 Eq. 166); and from the nature of certain interlineations and the internal evidence furnished by the document itself, the court concluded that they were made before execution and admitted then to probate. (Re Cadge, L. R., 1 P. & M. 543; Re Duffy, I. R., 5 Eq. 506.) Certain words were admitted as being in the nature of an interlineation. (Re Birt, L. R., 2 P. & M. 214.) Where the Ecclesiastical Court granted probate of a will of personalty with cross lines drawn in ink over the bequest of certain legacies, the Lord Chancellor held that it must be taken that the testator executed the instrument with the cross lines drawn over it, and inferred his meaning from the instrument in that form. (Gann v. Gregory, 3 De G., M. & G. 777; Shea v. Boschetti, 18 Beav. 321.)

in wills of realty.

Erasures superinduced by other writing.

Where there are alterations on the face of a will devising realty, the court will not presume such alterations to have been made either before or after execution. The onus is cast upon the party seeking to derive an advantage from the alteration to adduce evidence that the alteration was made before the will was executed. (Williams v. Ashton, 1 J. & H. 115; Simmons v. Rudall, 1 Sim., N. S. 137.)

The mere circumstance of the amount or the name of the legatee being inserted in different ink and in a different handwriting, does not alone constitute an obliteration, interlineation or other alteration within the meaning of this section, nor does any presumption arise against a will being duly executed as it appears. The case is different where there is an erasure apparent on the face of the will, and that erasure has been

8. 21.

superinduced by other writing. In such circumstances the onus probandi 1 Vict. c. 26, lies upon the party who alleges such alteration to have been made prior to execution, to prove by extrinsic evidence that the words were inserted before execution, and that they had the sanction of the testator. (Greville v. Tylee, 7 Moo. P. C. C. 320.)

Where the alteration is not attested in the manner required by this sec- Form of probate. tion probate will be granted of the will as it originally stood, if that is apparent (In bonis Beavan, 2 Curt. 369; In bonis Martin, 1 Rob. 712; Re Gaussen, 16 W. R. 212); but if not, probate will be granted in blank as to such parts of the will as cannot be read. (In bonis Ibbetson, 2 Curt. 337.) In order to discover the words as they originally stood, the court will submit the will to the examination of persons accustomed to inspect writings; and it is sufficient if they can be made out with the aid of magnifying glasses, or by evidence of that nature. (Ib.) Sometimes probate is granted in fac-simile. (1 Wms. Exors. 319.)

The word "apparent " here used does not mean capable of being made Meaning of "apapparent by extrinsic evidence, but applies to what is apparent on the face parent." of the instrument itself. A testator obliterated animo revocandi several passages of his will, so that none of the parts could be distinguished upon the face of the will: it was held, that this was a complete revocation of those parts. The court being of opinion that it was the intention of the legislature, that if a testator shall take such pains to obliterate certain passages in his will, and shall so effectually accomplish his purpose that those passages cannot be made out on the face of the instrument itself, it shall be a revocation as good and valid as if done according to the stricter forms mentioned in this act. (Townley v. Watson, 3 Curt. 761.)

Although this section does not, like the preceding one, contain the words," with the intention of revoking the same," it has been held, that intention must accompany the acts mentioned in this section in the same way as intention must accompany the acts mentioned in the 20th section. Under the Statute of Frauds Bibb d. Mole v. Thomas, 2 W. Bl. 1044) and this act, intention is indispensable; under the former statute, to burn, or to tear, or to obliterate a part of a will, was altogether a nullity, if such act was done without an intention to revoke, and only for the purpose of making immediately some new disposition or alteration; and if, from want of compliance with the statutory regulations, such new disposition or alteration could not take effect, then the burning, tearing or obliteration, in no degree revoked the will, but it remained in full force as if nothing had been done to it. Similar principles must be applied in cases arising under the present statute; there is nothing in the statute which tends to a contrary conclusion. (Per Dr. Lushington, Brooke v. Kent, 3 Moo. P. C. C. 349, 350.) It was decided by the Privy Council, where a testator intended to revoke a legacy by substituting a different sum to that originally given, and such substituted sum was not effectually given for want of compliance with the statute, the original legacy is not revoked, and that evidence is admissible to show what was the original legacy. (Brooke v. Kent, 3 Moo. P. C. C. 334.)

Interlineations were made in a will by the testator after its execution. Attestation of He sent for the witnesses, pointed out the alterations, declared he repub- alterations. lished his will, and then acknowledged his original signature, but did not re-sign. The witnesses placed their initials opposite to the alterations and also signed a memorandum at the foot of the will. The court granted probate of the will with the alterations, but intimated that the proper course, perhaps, would have been for the testator to have re-signed his name as the witnesses did. (In bonis Dewell, 1 Adm. & Eccl. R. 103; 17 Jur. 1130.)

to be revived

22. No will or codicil, or any part thereof, which shall be in No will revoked any manner revoked shall be revived otherwise than by the re- otherwise than by execution thereof, or by a codicil executed in manner herein- re-execution or a before required, and showing an intention to revive the same; and when any will or codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall

codicil to revive

ft.

8. 22.

1 Vict. c. 26, not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown (a).

Codicil must show

an intention to

revive.

Reference to revoked will by

date.

Revoked will

must be in existence.

Destruction of revoking instrument.

Revocation of a substituted legacy.

A devise not to be rendered inoperative by any subsequent conveyance or act.

Devise of lands and subsequent contract to sell.

(a) Since the passing of this statute a will cannot be revived by mere implication. To revive a will, a codicil must show an "intention to revive;" and the intention 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 expression conveying to the mind of the court with reasonable certainty the existence of the intention. (Re Steele, L. R., 1 P. & M. 575.)

References in codicils to revoked wills by their dates were held insufficient to revive them. (Ib.) Where, however, one entire part of a will, in duplicate, in the possession of the testator, remained undestroyed, but the other part, in the possession of his solicitor, was destroyed by the testator on the execution of a subsequent will made in 1838, in terms revoking the prior will; it was held, that the prior will was revived by a codicil made subsequently to the second will, though referring to the first will merely by date; that such reference sufficiently showed the intention to revive as required by this section; and that parol evidence was not admissible to establish a mistake in the date. (Payne v. Trappes, 1 Rob. 583. See Re Reynolds, 21 W. R. 512.) The revoked will must be in existence and if a codicil refer to a will with the intention of reviving it, and it turn out that such will had been entirely burnt or destroyed by the testator animo revocandi, the codicil cannot effect its revival. (Hale v. Tokelove, 2 Rob. 318; Newton v. Newton, 12 Ir. Ch. R. 118; Rogers v. Goodenough, 2 Sw. & Tr. 342.)

A testatrix duly executed a will, and subsequently thereto, two other wills, both of which contained a clause revoking all former wills. She afterwards destroyed the two latter wills. It was held, that the first will was not thereby revived, and that parol evidence was not admissible to show an intention to revive. (Major v. Williams, 3 Curt. 432; Powell v. Powell, L. R., 1 P. & M. 209.)

Where a testator gave 1007. to his executor, and by a subsequent codicil gave him 500l. in substitution for the first gift, and then revoked the second gift; it was held, that the first gift was not set up again. (Boulcott v. Boulcott, 2 Drew. 25.)

23. No conveyance or other act made or done subsequently to the execution of a will of or 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 with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death (b).

(b) This clause of the act applies to cases where testators, after having devised their estates, make conveyances of them which are to have the same effect as fines or recoveries, or where they mortgage the devised estate in fee and afterwards take a re-conveyance of them to themselves and a trustee to bar dower; but it does not apply to cases where the thing meant to be given is gone. (Per Shadwell, V.-C., Moor v. Raisbeck, 12 Sim. 139.) All those 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. (Ford v. De Pontes, 30 Beav. 593.) As to revocation by alteration of estate, see, further, Plowden v. Hyde, 2 De G., M. & G. 684; 1 Jarm. Wills, 136 et seq.; and as to the bearing of this section upon wills prior to 1838, see Lord Langford v. Little, 2 J. & Lat. 613; Walker v. Armstrong, 21 Beav. 284.

A testatrix having devised a real estate, afterwards sold it. The purchase was not completed until after her death. It was held that the purchasemoney belonged to the personal representatives, and not to the devisees of

8. 23.

the testatrix, notwithstanding her lien on the estate for the purchase- 1 Vict. c. 26, money, and notwithstanding this section of the act. (Farrar v. Earl of Winterton, 5 Beav. 1.) A similar decision was given where the estate devised had been conveyed to a purchaser who had deposited the deeds with the testatrix as a security for the purchase-money. (Moor v. Raisbeck, 12 Sim. 139.) And where the owner of an estate, after having devised it to an infant, agreed under compulsion to sell a portion of it to a railway company, and died before completion; it was held, that his executors and not the devisee were entitled to the purchase-money. (Re Manchester & Southport R. Co., 19 Beav. 365; Ex parte Hawkins, 13 Sim. 569.) But where a testator devised, by special description, lands subject to an Option of puroption of purchase to A. for life, with remainders over, it was held, that chase subscthe purchase-money was subject to the same limitations as had been quently exercised. declared of the lands. (Drant v. Vanse, 1 Y. & C. Ch. 580; Emuss v. Smith, 2 De G. & Sm. 722. See Bowen v. Barlow, L. R., 8 Ch. 171.)

As to the effect of a devise upon lands contracted to be sold, see, further, 1 Jarm. Wills, 46 et seq.; 1 Dart, V. & P. 243. And as to the effect, under the old law, of a contract to sell lands upon a prior devise, see Andrew v. Andrew, 8 De G., M. & G. 336; Sugd. R. P. Stat. 360–364. Under a settlement A. had power to appoint the reversion in fee of the settled estates, and the trustees had a power of sale with his consent, the purchase-money to be laid out in realty to be settled to the same uses. By his will A. appointed the property to trustees to sell and stand possessed of produce in trust for a class. Subsequently the trustees, with A.'s consent, agreed to sell the property: but at his death the conveyance had not been executed by one of the trustees, and the purchase-money had not been received; held, that the appointment in A.'s will had no effect either on the new estate to be purchased with the produce of the old, or on purchasemoney which stood in the place of the settled estate. (Gale v. Gale, 21 Beav. 349.)

Where a testator bequeathed certain leaseholds for all the residue of the terms for which the same should be held by him at his death, and afterwards acquired the fee, it was held that the fee passed. (Struthers v. Struthers, 5 W. R. 809; see Cox v. Bennett, L. R., 6 Eq. 422.)

24. Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will (c).

(c) As to the period from which a will prior to 1838 speaks, see Hawk. Wills, 14; 1 Jarm. Wills, 198; Hance v. Truwhitt, 2 J. & H. 216.

Under this section the court will consider what would be the proper construction of the will, assuming it to have been executed immediately before the testator's death, and whether, regard being had to the time when it was executed, anything appears in the will showing that, by this construction, the intention of the testator will be contravened. (O'Toole v. Browne, 3 El. & Bl. 572.)

Revocation of

prior devise by

contract under power of sale.

Bequest of leaseholds and subse

quent purchase of fee.

A will shall be from the death of the testator.

construed to speak

The qualification "unless a contrary intention shall appear by the will," Contrary intendoes not render it necessary to find a contrary intention expressed in so tion. many words: it is sufficient, if on a fair construction of the will, adhering to those rules which are usually adopted in construing wills, that the contrary intention does appear. (Cole v. Scott, 1 H. & T. 477.)

Thus a contrary intention may appear from a particular description Particular descripbeing given of the subject of the gift. A testator devised all his freehold tion of subject of estate at B., which he purchased of C., by a will dated before, and regift. published by a codicil dated after this act, but a small piece of land, purchased with the estate by the testator of C., and always held and mixed with it, was leasehold. After making the codicil, the testator purchased the fee of that small piece of land: it was held, that the codicil did not pass the after-acquired fee. (Emuss v. Smith, 2 De G. & Sm. 722.)