REVOCATION OF WILLS BY BURNING, ETC. 153

LETTER XIX.

I MUST now inform you how you may revoke your will, or revive it after you have revoked it; and my observations will apply to codicils as well as to wills.

As

Your will, then, may be revoked by another will or codicil executed in the manner I have already pointed out, or by some writing declaring an intention to revoke it, and which must be executed in like manner; or by the burning, tearing, or otherwise destroying the same, by yourself, or by some person in your presence and by your direction, with the intention of revoking the same. there must be an intention to revoke, if a testator, whilst of unsound mind, were to destroy his will, probate would be granted of the draft of the will; and destruction of the will by accident or mistake, if clearly proved, would not defeat the gifts, if the contents of the will could be shown. A man's will duly executed was found at his death with the signature of his name erased, but with another like signature just below where the original signature stood, and no explanation could be furnished, but the will was supported, as it was considered that the erasure was not made by the testator with an intention to revoke his will. You must be content with these instances.

But then you may revoke your will by burning, tearing, or otherwise destroying it, which enactment excludes the mode which was sanctioned by the former law, of cancellation, or striking the will through with a pen; therefore crossing out your name or the names of the witnesses is not a revocation.

154 REVOCATION BY BURNING, MARRIAGE, ETC.

But burning, tearing out, or cutting out your name from the will would be a revocation, for your will could not operate without your signature. The whole will would be destroyed by the removal of your signature. A will written in pencil would be destroyed by removing the words by india-rubber; even obliteration may amount to a revocation, as where the testator obliterates his name so that it cannot be made out, or if he erases it in like manner with an intention to revoke. If, however, you intend to revoke your will, the safer way is wholly to destroy it. And if you have executed two parts or copies of your will, take care and destroy both, although the destruction of one part may, under some circumstances, operate as the destruction of both. If you throw your will on the fire with an intention to revoke it, you should see that no one takes it off before it is burnt, for unless it is at least partially burnt, there will be no revocation.

There is still another act which will operate as a revocation of your will-your marriage after the execution of it, with an exception which would only perplex you; and the same law applies to your wife, for marriage of either sex operates as an immediate and total revocation of a prior will. This ought to be universally known; it is no improvement of the old law. When a man marries, he should immediately make a new will to meet the obligations which he has imposed upon himself. If he really mean his old will to stand, he must at once re-execute it or declare his intention by a codicil, and, I must always repeat, duly executed.

But no presumption of an intention on the ground of alteration of circumstances is allowed to revoke a will.

The Civilians carried the doctrine of presumption so far as to hold every will void in which the heir was not noticed, on the presumption that his father must have forgotten

MODES OF REVOCATION.

155

him. From this, as Blackstone reasonably conjectures, has arisen that groundless vulgar error of the necessity of giving the heir a shilling, or some other nominal sum, to show that he was in the testator's remembrance. The practice is to be deprecated, as it wounds unnecessarily the feelings of a disinherited child. This you may say does not always happen. An assembled family, as the legacy to each was read aloud, sobbed and wished that the father had lived to enjoy his own fortune. At last came the bequest to his heir-"I give my eldest son Tom a shilling to buy him a rope to hang himself with." "God grant," says Tom, sobbing like the rest, "that my poor father had lived to enjoy it himself!"

There are now only four modes by which a will can be revoked. 1. By another inconsistent will or writing executed in the same manner as the original will. 2. By burning, or other act of the same nature. 3. By the disposition of the property by the testator in his lifetime; for of course that leaves nothing for the will to operate upon, 4. By marriage. By the 2d and 4th modes, the revocation, as I have already intimated, will be complete. By the 1st and 3d, consistently with the new disposition, the revocation may be partial only.

You may wish to revive your will after you have revoked it; this can only be accomplished by the re-execution of it, or by a codicil duly executed, and showing an intention to revive it. And therefore you should expressly declare that you intend to revive your will, and that it shall remain in full force in like manner as if it had not been revoked.

There is a provision as to revivals of revoked wills, which may puzzle you at first sight. "When any will or

156

REVIVAL OF REVOKED WILLS.

codicil which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall 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."

Let me explain this to you. Your will is made, and then by a codicil you revoke one of the legacies given by the will. You then make a second codicil, by which you wholly revoke the will; lastly, by a re-execution of the will, or by a codicil duly executed, you revive your will, without noticing your first codicil revoking the legacy: the consequence would be that the legacy would stand revoked, and would not be revived, although the rest of the will would be. If, therefore, in such a case you desire the gift to the legatee to revive also, you should expressly declare such to be your intention, and then every part of your will would be revived. Bear in mind, that these observations are confined to wills which have been already revoked; for where the will has not been revoked, a codicil duly executed would operate to give effect, if necessary, to the prior will as of the date of the execution of the codicil, unless a contrary intention appeared. There is one point of importance to which the attention of every man should be drawn. A will "which shall be in any manner revoked" will not be revived by the re-execution of the will, or by a codicil, unless showing an intention to revive the same." Now marriage will operate as a revocation of a will, and that, I suppose, will be held to be within this clause. Well, a man marries after he has made his will, but is wholly unconscious that his marriage has revoked his will; he subsequently to his marriage makes a codicil giving a legacy; yet unless that codicil show an intention to revive the will, it will remain inoperative.

CONSTRUCTION OF WILL.-RE-EXECUTION.

157

No conveyance or other act by you subsequently to the execution of your will, in reference to any property comprised in it, except such an act as will revoke your Will, will prevent the operation of your will with respect to such estate or interest in the property in question, as you shall have power to dispose of by will at your death. I must explain this to you: By your will you have given your estate in Sussex to one of your sons; now if you were, after your will, to convey that estate to another of your sons for his life, the estate would still, but subject to this life-estate, go under your will to the son to whom you devised it, without its being necessary for you to re-execute your will.

Your will, I must tell you, will be construed with reference to the real and personal estate comprised in it [that is, with reference to any gift in it of real or personal estate], to speak and take effect as if it had been executed immediately before your death, unless a contrary intention appear by your will. And, finally, every will re-executed, or republished,* or revived by any act, will, for the purposes of the Act of Parliament, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived. All these are excellent provisions, and calculated to carry your testamentary intentions into effect.

* This word may require explanation. Formerly a will of real estate was required to be published; when new force was given to it-by re-execution, for example, it was republished. But publication had no precise meaning, and the necessity of it was taken away by the late Act. As, therefore, there is no longer a publication, there can, properly speaking, be no republication, and the framers of the Act supposed that the latter word would no longer be used; but so inveterate is habit, that the expression has found its way into the Act itself.