the testator crossed out, and the attestation clause and the names of the witnesses likewise run through with a pen; and in another case (t), notwithstanding that the testator had written the word "cancelled" across his signature, and added a written declaration that the will in question was revoked, and that he intended to make another will. And the fact that a testator, besides cancelling his will, had thrown it away amongst a heap of waste papers, has been held to make no difference (u). But of course, a complete obliteration of any part of an executed will revokes that part; such a case coming within those provisions of the Act (v) which give effect to alterations so made that words contained in the will before such alterations are no longer apparent (w). tion must be As to the various modes of destroying a will which How destrucare mentioned in the Act, it is to be observed that there accomplished. are two things requisite to make them effectual revocations. The first is that the destruction, if not the act of the testator himself, must be in his presence as well as by his direction. Thus, where a person who had made a will, afterwards in the presence of two witnesses expressed a wish to revoke it, and desired them to take it into another room and burn it, which was done, it was held that this did not amount to a revocation, and probate was accordingly granted of a draft copy of the will (x). And, of course, the destruction of a will after the testator's death, although done in pursuance of his written request to that effect, is inoperative as a revocation of the will (y). The other point is, that the destruction of a will must, in order to be effectual, be accompanied by an intention on the part of the testator to revoke it. Hence, where a testator tore up his will under a mistaken impression (t) Re Brewster, 6 Jur. N. S. 56. (w) Townley v. Watson, 3 Curt. 761. (x) Re Dadds, 29 L. T. 99; and see Rooke v. Langdon, 2 L. T. 495. (y) Stockwell v. Ritherton, 1 Rob. 661, 667. that it was invalid, and then on second thoughts collected and preserved the pieces, it was held that there had been no revocation of the will (2). And a similar decision was given in a case (a) where a testator, having torn up his will when suffering from delirium tremens, on his recovery expressed his regret for what he had done, and preserved the pieces, which had been collected at the time (b). It must also be clearly proved that the intention to revoke existed at the time of the will being destroyed; subsequent declarations by a testatrix that she had destroyed her will with the intention of revoking it having been held insufficient (c). The Court of Probate will, however, presume that a will which has remained in the custody of a deceased person until the time of his death, and the non-existence of which at his death is clearly proved (d), has been revoked by him during his lifetime (e). But if a will has been lost, and the Court is of opinion that it has not been intentionally destroyed by the testator, verbal evidence may be given as to its contents, and such evidence may consist of declarations made by the testator, or of statements by a witness who has seen the will and remembers its contents (ƒ). It may be added here that whereas formerly a codicil was revoked whenever the will to which it belonged was revoked, a codicil now takes effect independently of a will, unless revoked by one of the modes indicated by the Wills Act. Thus, in one case, a testator had executed a will and a codicil to that will, and after his death, his will, not being forthcoming, was presumed to have been revoked: it was held, nevertheless, that the codicil having been duly (z) Giles v. Warren, L. R. 2 P. & M. 401. (a) Brunt v. Brunt, L. R. 3 P. & M. 37. (b) And see Powell v. Powell, L. R. 1 P. & M. 209, 212. (d) Finch v. Finch, L. R. 1 P. & M. 371. (e) Eckersley v. Platt, L. R. 1 P. & M. 281, 284. (f) Sugden v. St. Leonards, L. R. 2 P. & M. 154 executed, must be admitted to probate as a will (g). Neither does a codicil revoking a will necessarily revoke a prior codicil to that will. Where a testator had made a will and two codicils, and afterwards, by a third codicil, revoked the will except as to a bequest stated to have been made by it, the two codicils remained valid, notwithstanding the revocation of the will (h). The sections of the Act which have been referred Revival of a will. to on the subject of revocation are completed by another (i) which provides that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in the manner required by the Act, and showing an intention to revive the same; and that when any will or 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. Under the old law, if Former rule as a man made a will, and then a second will revoking the first, and afterwards revoked the second, it would be presumed, if the first remained in existence, that the testator had intended to give it the same effect as if it had never been revoked (j). The Wills Act re- Change made quires either that the will should be re-executed, by the Act. which is tantamount to making a new will in the same terms, or, where the will is revived by a codicil, that the intention of which it speaks should appear on the face of the codicil, either by express words referring to the will as revoked and importing an intention to revive it, or by a disposition of the testator's property inconsistent with any other intention, or by (g) Black v. Jobling, L. R. 1 P. & M. 685; and see Re Savage, L. R. 2 P. & M. 78; Re Turner, L. R. 2 P. & M. 403. (h) Farrer v. St. Catharine's College Cambridge, L. R. 16 Eq. 19. (i) S. 22. (j) Goodwright v. Glazier, Burr. 2512. to revival. some other expressions conveying with reasonable certainty the existence of the intention in question. In other words, it was designed by the statute to do away with the revival of wills by mere implication (k). Therefore the fact that a codicil refers to a previous revoked will is not a sufficient indication of an intention to revive that will, when it appears from the codicil itself that the reference to the will was made by mistake (1). Neither can a codicil revive a will which has been destroyed with the intention of revoking it, for in that case the will has ceased to exist both in law and in fact, and a will or codicil cannot incorporate, or revive, a document which has no existence at the time when the will or codicil is executed (m). Lastly, it may be mentioned that, just as a codicil is not necessarily revoked by the revocation of the will to which it belongs, so it is not, after having been revoked, revived by another codicil reviving the will, unless the subsequent codicil shows an intention to revive the revoked codicil as well as the will (n). the other hand, a codicil revoking part of a will is not, in its turn, revoked by a subsequent codicil confirming the will the effect of the subsequent codicil being to confirm the will only so far as is consistent with the revoking codicil (0). (k) Re Steele, L. R. 1 P. & M. 575, 578. (1) Re Wilson, L. R. 1 P. & M. 582. On (m) Hale v. Tokelove, 2 Rob. 318; Newton v. Newton, 5 L. T. (N.S.) 218; Rogers v. Goodenough, 2 Sw. & Tr. 342, 350. (n) Re Reynolds, L. R. 3 P. & M. 35. (o) Green v. Tribe, 9 Ch. D. 231. INDEX. ABSTRACT- Definition of an, 322. Condition of sale as to sending in requisitions after delivery of the, Vendor must deliver a perfect, ib. ACCOUNT- Between mortgagor and mortgagee, when taken with rests, 264. ACCUMULATION- Of income, restrictions on, 219. ACKNOWLEDGMENT- By married woman, to bar an estate tail, 124. Written, extends time for recovery of land, 146. Of mortgagee's rights to principal and interest, 259, 260. Required by Statutes of Limitation, need not be formal, 260. Of mortgagor's title, by a mortgagee, 265. Of mortgagor's title, by a trustee who is one of several mortgagees, Of mortgagee's title, by mortgagor, 273, 274. Of right to production of title-deeds, 358. Of a will, by the testator, witnesses must be present at the, 420. ADMINISTRATOR- Of a lessee, how protected, 66. Of a tenant for life, must remove fixtures within a reasonable time, Of a tenant for life, is entitled to emblements, III. ADMITTANCE- New tenant of a manor requires, 162. Surrender and, theory of, ib. Enactments relating to surrender and, 162-165. Of tenant of manor, may take place within or without the manor, Of new tenant, to be immediately inrolled, ib. |