§ 1309. Revocation of Former Will by Subsequent Lost or Destroyed Will, Where various documents are presented to the court for admission to probate, or if a single document is presented which in express terms revokes all former wills or codicils made by the testator, the court may easily determine what is entitled to be admitted. A lost or destroyed will may be admitted to probate when properly established. An instrument presented to the court for probate may be shown to have been revoked by the testator by a subsequent will which has been lost or destroyed and can not be produced in court. Proof of a lost or destroyed will may be made for the sole purpose of establishing the fact of revocation of all former wills or codicils, and in such a case, when introduced for that sole purpose, it makes no difference whether the instrument which can not be produced was last in the possession of the testator or of some third person." 6 The general rule is that a will revoked by a subsequent will is not revived by a revocation of the latter. A distinction has been made between the case where the former will is in express terms revoked by the later will, and the case where the revocation is only implied because of inconsistent dispositions in the later instrument. But where the revocation is in express terms, the weight of authority is that the former will can not be revived by the revocation of the later. So an instrument offered for probate may be shown to have been revoked by a 4 See §§ 1305-1308. 5 Brown v. Brown, 8 El. & Bl. 876; Williams v. Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 4 Ann. Cas. 306, 62 L. R. A. 383, 94 N. W. 705, 96 N. W. 151. 6 See §§ 555-557. Compare: In re Gould's Will, 72 Vt. 316, 47 Atl. 1082. 7 See §§ 556, 557. subsequent will which has been lost or destroyed, even though the contents of such missing instrument can not be fully established so as to allow it to be admitted to probate, if the fact of express revocation is clearly shown.8 §1310. The Same Subject: Revocation by Implication. If the revocation of a former will is accomplished by reason of inconsistent dispositions of a later will which has been lost or destroyed, there being no revocation in express terms, the contents of the later will must necessarily be established in order that the inconsistency may be shown. Where such inconsistency is clearly established, the former will is to that extent revoked. It is, of course, necessary that the missing instrument be shown to have been duly executed with all the formalities required for the execution of wills, and that so much of its contents be established as is necessary to show revocation,10 In those jurisdictions where the distinction between express and implied revocation is recognized, any former will which is not revoked in express terms by a later one, but only by reason of inconsistent dispositions, if the proof is based upon presumption or fact, that the testator revoked the second will thereby reviving the former, the establishment of inconsistent terms in the later will 8 Goods of Debac, 77 L. T. N. S. 374; Williams v. Miles, 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 769; Lane v. Hill, 68 N. H. 275, 73 Am. St. Rep. 591, 44 Atl. 393. Goods of Debac, 77 L. T. N. S. 374; Muller v. Muller, 108 Ky. 511, 56 S. W. 802. 10 West v. West, 144 Mo. 119, 46 S. W. 139; Williams v. Miles, 68 Neb. 463, 110 Am. St. Rep. 431, 4 Ann. Cas. 306, 62 L. R. A. 383, 94 N. W. 705, 96 N. W. 151; In re Williams' Will, 34 Misc. Rep. 748, 70 N. Y. Supp. 1055; McKenna v. McMichael, 189 Pa. St. 440, 42 Atl. 14. does not operate as a revocation." But one presumption should not be based upon another. If the fact that a will known to have been executed by the testator can not be found after his death is the basis for the presumption that such missing will was revoked by him, there should not be added thereto the additional presumption, based upon it, that by reason of revocation of the later will the testator intended to revive the earlier will.12 § 1311. What Constitutes the Last Will of a Decedent. It is only the last will of a testator that may be admitted to probate. An instrument which has been revoked is not the final testament of a decedent unless it has been subsequently revived or republished.18 The term "will" comprises not only the original will, but codicils thereto, which codicils may operate as additions to or modifications of the original testament either in express terms or by inconsistent or additional dispositions. Revocation may also be implied from many circumstances.14 A will may not only consist of the instrument itself, but other documents may be incorporated into it by reference.15 A will likewise may be in various forms, such as the form of deed, note, letter, assignment, and the like, the true test of a will being the testamentary intent to pass property after the death of the maker.16 Wills may 11 Marsh v. Marsh, 48 N. C. 77, 64 Am. Dec. 598. See, also, Blakeman v. Sears, 74 Conn. 516, 51 Atl. 517; Moore v. Rowlett, 269 Ill. 88, Ann. Cas. 1916E, 718, 109 N. E. 682; In re Diament's Estate, 84 N. J. Eq. 135, 92 Atl. 952; Flintham v. Bradford, 10 Pa. St. 82, 90. 12 Williams v. Miles, 73 Neb. 193, 102 N. W. 482, 105 N. W. 181, 106 N. W. 769. 18 As to republication of wills, see §§ 562-572. 14 As to revocation and alteration of wills, see §§ 514-561. 15 See §§ 75-78, 566, 567. As to the classification and form of wills, see §§ 32-68. likewise be joint, mutual or reciprocal, conditional or contingent, duplicate, or in the particular form prescribed by the laws of Louisiana. Each class of wills has special regulations applicable to it." The rules of law pertaining to such matters have hereinbefore been treated and should be consulted when occasion arises. When an instrument is presented to a court for probate, the court merely determines whether or not the instrument was duly executed by one possessing testamentary capacity, acting of his own volition. The sufficiency or invalidity of the provisions of the instrument are determined only when effect is sought to be given to them. Matters of construction are not involved in the admission of a will to probate.18 In proving the last will of a decedent, evidence should be given showing that search has been made among the papers and effects of the testator and no other instrument of a testamentary character could be discovered. § 1312. Instrument Presented for Probate May Be Admitted in Part. It is for the court of probate to determine what instruments presented to it are entitled to probate, and likewise whether all the reading matter on the paper presented is entitled to admission as a part of the testator's will. Alterations or obliterations may appear on the face of the document. In some jurisdictions a partial revoca 17 As to joint, mutual or reciprocal wills, see §§ 69-101. As to conditional or contingent wills, see §§ 102-115. As to duplicate wills, see §§ 116126. As to Louisiana testaments, see §§ 127-134. 18 Estate of Murphy, 104 Cal. 554, 38 Pac. 543; Toland v. Toland, 123 Cal. 140, 55 Pac. 681; In re Pforr's Estate (Thornagel v. Pforr), 144 Cal. 121, 77 Pac. 825. See, also, § 1190. tion of a will is authorized by statute, as by drawing ink lines through each word of a clause so as to cancel it, and allowing the instrument with the cancelled part omitted to be received for probate.19 But generally alterations or interlineations appearing on the face of a testamentary instrument are presumed to have been made subsequent to execution, which presumption, however, may be rebutted by extrinsic evidence.20 Where the statute prescribe that no changes shall be made in a will unless executed with all the formalities required for making the original will, additions, obliterations, interlineations, or alterations appearing on the face of the instrument, unless shown to have been made prior to the execution of the will, must be disregarded and the instrument be admitted to probate without such changes if the original language can be deciphered or supplied by extrinsic evidence. If not, the altered portions will be disregarded and considered as blank.21 If a stranger alters the will of the decedent after its execution, such alterations can not in any event be considered; and if a beneficiary named in the will alters a devise or bequest in his favor to the prejudice of others, not only the altered but the original benefit as well should be declared void and no part of the instrument.22 19 See §§ 523, 524, 559. 20 See §§ 558, 559. A clause added to the will after its execution, but, the clause or will was not re-executed or attested by the witnesses, can not be accepted as part of the will.-Hesterberg v. Clark, 126 Ill. 241, 57 Am. St. Rep. 135, 46 N. E. 734. 21 See § 560. 22 See § 561. Where a clause, by forgery, is added to a will after the testator's death, it must be rejected.-Plume v. Beale, 1 P. Wms. 388. Where it is established that a particular clause was fraudulently added to the will without the knowledge of the testator, the will may be admitted to probate with reservation of such clause.--Bar |