1 Vict. c. 26. intention purely, and open to a decision, either way, solely according to facts and circumstances (u). With respect to Wills which are within the operation of the stat. 1 Vict. c. 26, it is enacted by s. 22 of that Act, 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 as required by the Act, and shewing an intention to revive the same. This section was probably intended by the framers of it to put an end for the future to all discussion as to the validity of a former Will after the revocation of a subsequent inconsistent one: And it may be expected, that, in construing the statute, such an effect will be given to the enactment. At the same time it may be observed, that the language employed in Hooton v. Head, 3 Phillim. 32. (u) By Sir John Nicholl, in and a case can hardly be so destitute of all circumstances as to require a decision upon mere legal presumption, and nothing else: see 3 Phillim. 554. The nature and contents of the Will themselves may, it should seem, furnish grounds for deciding the question of intention, exclusive of circumstances dehors the Will. Thus if the latter Will contains a disposition of quite a different character, this may be looked upon as such a complete departure from the former intention, that the mere cancellation of the latter instrument may not lead to a revival of the former, but intestacy may be inferred. If, however, the two Wills are of the same character, with a mere trifling alteration, it is the rational probability, that when the testator destroyed the latter, he departed from the alteration, and reverted to the former disposition remaining uncancelled; and consequently that he intended a revival. See Kirkcudbright v. Kirkcudbright, 1 Hagg. 327. it is not calculated to exclude all controversy on the subject; because it was put by Lord Mansfield in Goodright v. Glazier, that the second Will is ambulatory till the death of the testator; if he lets it stand till he dies, it is his Will; if he does not, it is not his Will, and has no effect, no operation; it is no Will at all, being cancelled before his death: If, therefore, such cancellation totally prevents its operation, it may be argued that the previous Will continues valid; because it has not been in any manner revoked; inasmuch as the subsequent Will in its ambulatory state had no effect whatever. If, however, the true principle is that put by Mr. Justice Yates in the same case, viz., that the first Will is good because the revocation of it by the second Will was itself revocable, and the testator has revoked the revocation by cancelling the second Will, then the above clause of the new Statute of Wills clearly applies; and the prior Will cannot be valid unless revived by some of the modes prescribed.-Where the second Will contains a revocatory clause, the point has lately been regarded in the Prerogative Court as free from all difficulty. Thus in Major v. Williams (x), a testatrix, after the new Act came into operation, executed a Will, and subsequently thereto two other Wills, in each of which was contained a clause revoking all former Wills: She afterwards destroyed the two latter Wills: And it was held very clearly by Sir H. Jenner Fust, that the first Will was not thereby revived, and that parol evidence was not admissible to shew an intention to revive (y). SECTION III. By express Revocation. According to the new Statute of Wills (1 Vict. c. 26, s. 20), Revocations an express revocation of a Will or other testamentary instru ment cannot be effectual, unless it be contained in a Will or (x) 3 Curt. 432. (y) See also the judgment of the same judge in Saunders v. Saun ders, 6 Notes of Cas. 524. after Jan. 1, 1838: 1 Vict. c. 26. Revocation before Jan. 1, 1838. 29 Car. 2, c. 3, cannot be by words only: codicil executed as required by the Act, or in "some writing declaring an intention to revoke the same and executed in the manner in which a Will is hereinbefore required to be executed" (2). By sect. 34, it is enacted, that "this Act shall not extend to any Will made before January 1, 1838:" The construction of which clause has been understood to be, with reference to the subject of the present inquiry, that the statute shall not extend to any act of revocation done with respect to a Will before January 1, 1838 (a). As to an express revocation, contained either in a Will or codicil, or in any other distinct writing, before January 1, 1838, it was provided by the sixth section of the Statute of Frauds (29 Car. II. c. 3), that if a revocation of a Will of lands was to arise from another Will or codicil inconsistent with the first, such Will or codicil must be executed according to the solemnities of the 5th section: and if the revocation was to arise from some other distinct writing, not being a Will or codicil, such writing must be signed by the testator in the presence of three witnesses (b). This provision, however, did not extend to a Will of personal estate. But by the 22nd section of the Statute of Frauds, it was enacted, that "no Will in writing, concerning 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 of mouth 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." This clause of the statute, it has already been remarked, did not operate to prevent a revocation by an instrument which amounted, according to the rules of the Ecclesiastical Court, to a subsequent Will, although such instrument was never read over to the testator, or allowed by him (c). (z) See this section verbatim, ante, p. 111. (a) Hobbsv. Knight, ante, p. 114. (b) 1 Saund. 276, h. 860, note to Duppa v. Mayo. (c) Ante, p. 139, 140. declaration of intention to revoke, though in writing, does not revocation, But it must be observed, that a declaration of an intention to revoke, though reduced into writing, according to the direction of the Statute of Frands, would not amount to a revocation. Words declaring only a future intention to revoke, amount to a were not considered a revocation before that statute; as if the testator had said, "I will alter my Will," or, "it shall not stand," these words being indicative only of an intention to revoke at some future time, were holden not to be a revocation (d). And so it is since the Statute of Frauds, notwithstanding the instrument containing words of an intention to revoke be executed according to the directions of the statute. As where a testator by a subsequent Will, duly executed and attested, devised away a reversion in fee, which had been given to him since the making of a former Will, and at the conclusion of the subsequent Will, added, that as to the rest of his real and personal estate, he intended to dispose of the same by a codicil to that his Will thereafter to be made, and afterwards died without doing any other act to revoke his Will; it was adjudged that these words, declaring only an intention to revoke, though reduced into writing, with all the formalities of the statute, did not amount to a revocation, any more than a parol declaration of the same words would have done before the statute (e). However, in Walcott v. Ochterlony (f), the deceased having made a will, which she deposited with a Mr. George, one of her executors, for safe custody, caused a letter to be written, desiring that the Will might be destroyed: The executor did not destroy the Will, and the deceased was not informed down to the time of her death, whether the Will had been destroyed or not; but died without having altered her intention to revoke, and in the belief that she had done so: And Sir Herbert Jenner Fust held, that, under the circumstances, the Will was revoked: The learned Judge said (d) Cranvel v. Saunders, Cro. Jac. 497. 1 Roll. Abr. 615, (P.) pl. 1. Moor, 874, 875. 1 Saund. 279, g, note to Duppa v. Mayo. (e) Thomas v. Evans, 2 East, 448. (ƒ) 1 Curt. 580. To revoke a clear devise, the intention to revoke must be as clear as the devise. Express revocation subservient to sition. that "there could be no doubt of her animus revocandi; and having established this point, what does the law require to give effect to such intention? The Statute of Frauds provides that no Will in writing of personal estate shall be repealed, nor any clause or bequest therein altered or changed by any words: Is this a revocation by words? I apprehend not: The deceased did not say, "I revoke my Will," but in effect says, "Mr. George is in possession of my Will; I am not able to destroy it myself, but I desire that he will destroy it;" and this amounted to a present intention absolutely to revoke, which was written down at the time, approved of by the deceased, and by her direction communicated to the person in whose custody the Will was; it was an absolute direction to revoke, reduced into writing in the deceased's lifetime. There is nothing in the Statute of Frauds which prevents such revocation having effect, and it is clear that, prior to the statute, a Will might be so revoked" (g). In the case of Doe v. Hicks (h), it was stated by Tindal, C. J., in delivering the opinion of the judges in the House of Lords, that the principle on which that opinion proceeded was, that where a devise in a Will is clear, it is incumbent on those who contend that it is not to take effect, by reason of a revocation in a codicil, to show that the intention to revoke is equally clear and free from doubt, as the original intention to devise (i). It may be deduced from the case of Onions v. Tyrer, and the authorities which have been cited in a previous section, another dispo- (with respect to the doctrine of cancellation, dependent on the efficacy of another act), that even an express revocation of all former Wills, though not wanting in any circumstance for a revocation, will not operate as such, if only subservient to another subsequent disposition, which fails (k). (g) See also Doe v. Harris, 8 A. & E. 1. S. C. 2 Nev. & P. 615, ante, (h) 8 Bing. 479. (i) See Accord., Cleoburey v. Beckett, 14 Beav. 587, per Romilly. M. R. Williams v. Evans, 1 E. & (k) By Sir W. Grant, 7 Ves. 379; unless it fails by reason of the incapacity of the legatee: Tupper v. Tup-per, 1 Kay & J. 665, ante, p. 134. |