an interlinea tion and a codicil to the same effect; by cancelling ene, the other is cancelled: ever existed. This mutilation of the first sheet, leaving the signature untouched, would not be a total revocation; it would be a revocation of those particular devises only; but there being two papers both in the deceased's possession, the presumption of law would be, that by the preservation of one duplicate entire, she did not intend a revocation of these particular devises, otherwise she would have mutilated both duplicates. The construction then to be put upon this act of mutilation (for it clearly appears to have been her own act), is, that, at most, it was a preparation for a projected alteration, to which she had not finally made up her mind, or which she had abandoned; and therefore, she preserved entire the duplicate which she had always retained in her own possession, and on which she had written the word 'mine.'" However, in Doe v. Strickland (m), where the testator had died with two instruments both in his own keeping, the one a copy of the other, and which the jury (on the trial of an ejectment) found he intended should form his one Will in two parts, and he had obliterated (it being a case before the Wills' Act) certain passages in one of the two, leaving the other unaltered, and the jury also found that the obliterations were meant by him to be final alterations and to stand as his last Will, the Court of Common Pleas held that the obliterations in the one instrument operated as a revocation. of the corresponding passages in the other. In another case under the old law, where a father, after having made his Will, being displeased with his son, by an interlineation of his Will, excluded him from all share in his property but one shilling, and also by a codicil made for that purpose, declared his determination to the same effect; but afterwards being reconciled to his son, the testator cancelled the codicil, by drawing his pen across it, but the interlineation was left standing in the Will; it was held by Sir W. Wynne, in the Ecclesiastical Court, and afterwards by Sir W. Grant, M.R., that the cancellation of the codicil had the effect of cancelling the interlineation (n). So it was held (m) 8 C. B. 724. (n) Utterson v. Utterson, 3 Ves. & Beam. 122. a Will cancels the signed draft from which it in the case of draft which a testator signed, and afterwards cancellation of executed a Will from it; if he should afterwards cancel the Will animo revocandi, the draft would be thereby also revoked (o). was prepared. lation : If a Will in testator's cus tody be found mutilated, the presumption is, that he mutirevocandi : lated it animo If a testament was in the custody of the testator, and upon Proof of mutihis death it is found among his repositories mutilated or defaced, the testator himself is to be presumed to have done the act (p); and it has already appeared that the law further presumes that he did it animo revocandi (q). So where a testator has a Will in his own custody, and that Will cannot be found after his death, the presumption is that he destroyed it himself: it cannot be presumed that the destruction has taken place by any other person without his knowledge or authority; for that would be presuming a crime (r). And this presumption holds with respect to duplicate Wills: Hence if a Will was executed in duplicate, and the testator has the custody of one part, and it cannot be found, after his death; the presumption of law is, that he destroyed it animo revocandi; and both parts are consequently to be considered revoked, unless such presumption be rebutted (s). if it cannot be sumption is stroyed it animo rero found, the pre that he de candi: so where the testator has the custody of plicate Wills. one of two du. There can be no doubt, that if a Will duly executed is An unrevoked Will, which destroyed in the lifetime of the testator without his authority, has been unit may be established, upon satisfactory proof being given of its having been so destroyed, and also of its contents (t). (a) 1 Phillim. 400. (p) Swinb. Pt. 7, s. 16, pl. 5, Davies v. Davies, 1 Cas. temp. Lee, 444. Lambell v. Lambell, 3 Hagg. 568. (9) Ante, p. 128. 3 Hagg. 568. (r) Helyar v. Helyar, 1 Cas. temp. Lee, 472. Mumford v. Rickards, 2 Phillim. 23. Loxley r. Jackson, 3 Phillim. 126. Lillie r. Lillie, 3 Hagg. 184. Wargent t. Hellings, 4 Hagg. 245. Welch t. Phillips, 1 Moore Priv. Counc. Rep. 299. James v. Cohen, 3 Curt. 770. Williams v. Jones, 7 Notes of Cas. 106. But this presumption (t) Trevelyan v. Trevelyan, 1 duly mutilated or destroyed, may be esta blished: The law is the same, where a wife, having power to dispose of property by her Will, makes her Will and afterwards destroys it by the compulsion of her husband (u). So where after the death of the testator, his Will and codicil were wrongfully torn by his eldest son; the Court, by means of some pieces which were saved, and by oral evidence, having arrived at the substance of the instrument, pronounced for them (x). So if a Will be wholly or partially mutilated or tilated by tes destroyed by the testator whilst of unsound mind, it will be pronounced for, as it existed in its integral state, that being ascertainable (y). So a Will mu tator whilst non compos, may be established. The onus of cellation to be the act of the testator lies on those who oppose the Will. It must be borne in mind that the onus of making out that showing a can- the cancellation of a Will was the act of the testator himself, lies upon those who oppose the Will. Accordingly where a holograph instrument, purporting to be a codicil, was sent anonymously by the post to one of the legatees named therein, it was admitted to probate, though partially burnt and torn across, the handwriting being satisfactorily proved and the confirmatory and adminicular proof being sufficient to satisfy the Court that it was a genuine instrument (z). SECTION II. Revocation by a subsequent Testamentary Disposition. "Concerning the making of a latter testament," says Swinburne (a), "so large and ample is the liberty of making testaments, that a man may, as oft as he will, make a new testament even until his last breath; neither is there any cautel under the sun to prevent this liberty: But no man can die with two testaments, and therefore the last and (u) Williams v. Baker, Prerog. June 1, 1839. (x) Foster v. Foster, 1 Add. 462. See also Knight v. Cook, 1 Cas. temp. Lee, 413. (y) Scruby v. Fordham, 1 Add. 74. In the goods of Brand, 3 Hagg. 754. In the goods of Shaw, 1 Curt. 905. (2) Hitchins v. Wood, 2 Moore, P. C. C. 355-447. (a) Pt. 7, s. 14, pl. 1. newest is of force; so that if there were a thousand testaments, the last of all is the best of all, and maketh void the former." It is indeed a necessary consequence of the ambulatory nature of a Will, that the last testamentary disposition of property by a testator shall be operative, to the exclusion of any previous contrary or inconsistent one. Consequently, before the passing of the new Statute of Wills, though in order that a subsequent Will or codicil of lands might revoke a prior one, such later Will or codicil must have been executed pursuant to the Statute of Frauds; yet a Will of personalty, however solemnly and formally made, might have been totally or partially revoked by another subsequent Will or codicil, or other instrument, however informal with respect to language or execution, provided it could be considered a testamentary paper, according to those rules of the Ecclesiastical Court which this Treatise has already attempted to point out (b). Nor was it necessary, in order to produce such effect, that in the latter testamentary paper there should be any mention of revoking the former (c). And this is still the law with respect to the effect of subsequent testa. mentary dispositions, made before January 1, 1838; because the Statute of Victoria does not extend to them. With respect, however, to cases within the operation of the new Law, no revocation, either total or partial, can be effected by means of a subsequent Will, or codicil, or other testamentary disposition, unless the same be executed with the solemnities. required by that Act. It had been sometimes objected, that although instructions neither reduced into writing in the presence of the testator, nor read over to him, might operate as a Will so as they were put into writing in his lifetime (d), yet that such testamentary paper could not revoke a prior Will without violation of the twenty-second section of the Statute of Frauds, whereby it was provided, that "no Will in writing, con (b) See ante, p. 60-96. Helyar v. Helyar, 1 Cas. temp. Lee, 472. (c) Swinb. Pt. 7, s. 14, pl. 4. A prior Will revoked by a subsequent Will of different purport. cerning any goods or chattels, or personal estate shall be repealed, nor shall any clause, devise, or bequest therein be altered or changed by any words, or Will by word or moutli only, except the same be in the life of the testator committed to writing, and after the writing thereof read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least." But it was held that the statute did not prevent a revocation by such means. The case of Sellars v. Garnet (e) in the Prerogative Court, Oct. 1748, was full to this point: for there an executed Will was held to be revoked by a Will written while the testator was alive; but he died before it was brought to him, and the contents thereof were proved by witnesses who heard him give the instructions agreeable to what was written down: It was insisted that this parol evidence could not be received; that it was to revoke a written Will by parol, contrary to the statute: But both Dr. Bettesworth in the Prerogative Court, and the Delegates who affirmed this sentence in 1751, were of opinion that it was a Will in writing; that the parol proof of the instructions ought to be received; and that it was not a case within the Statute of Frauds. Nor did the statute interfere to prohibit the introduction of parol evidence to prove the fact of a non-appearing Will non-appearing having existed, subsequent to the Will found on the death of the testator. Accordingly in Helyar v. Helyar (f), Sir G. Lee held that the execution of a second Will, with a different executor and residuary legatee, was by law a revocation of the first, though the second did not then appear (g). But the mere fact of making a subsequent testamentary not revoked by paper does not work a total revocation of a prior one, unless the latter expressly or in effect revoke the former, or the two be incapable of standing together: for though it be a maxim, as Swinburne says above, that "no man can die A prior testamentary paper a subsequent one, unless they be inconsistent: (e) Cited by Sir George Lee in the case of Helyar v. Helyar, from his own MS. notes, 1 Phillim. 430. S. C. 1 Cas. temp. Lee, 509. (f) 1 Cas. temp. Lee, 472. (g) See post, p. 154-157, as to whether the first Will would be revived, by the revocation of the second. |