be no longer ground for litigation, as formerly, upon evidence of the testator's intention: the revocation being no longer implied, but actually consequent upon the fact of marriage. There is one exception to this enactment, viz. the case of a will made in exercise of a power of appointment; when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor or administrator, or the person entitled as his or her next of kin under the Statute of Distributions. SECT. 19. SECT. 18. Circumstances. A great many questions have arisen out of the Alteration of doctrine that wills were revoked by implication, founded upon a presumption of intention on account of an alteration in the circumstances of the testator. These cases have for the most part involved marriage and the birth of children, which events may happen under circumstances so various, as to render it impossible to imply any intention as generally consequent thereon. The last section has expressly made the act of marriage a revocation of a prior will. The present enacts that no will shall be revoked by any presumption of intention grounded on a change of circumstances: so that an invalid marriage would be no revocation under the statute; and evidence would not be admissible to show that the testator believed that the marriage was legal, SECT. 19. 1 Phill. Ecc. R. 447. Form of Revocation. and that his prior will was revoked by such supposed legal act. This clause will exclude all such questions as arose on this subject in the cases of Doe v. Lancashire, 5 T. R. 58; Christopher v. Christopher, cit. 4 Burr. R. 2182; Kenebel v. Sceafton, 2 East. 541; Sheath v. York, 1 Ves. & B. 413; Sullivan v. Sullivan, 1 Phill. Ecc. R. 343; Gibbons v. Caunt, 4 Ves. 848; Ex parte Ilchester, 7 Ves. 348; Brown v. Thompson, 1 Eq. Ca. Abr. 413; where evidence of circumstances showing the revocation to be unnecessary was admitted. It was declared, in Johnson v. Johnson, that the birth of children, combined with other circumstances, could revoke a will of personal property made after marriage. But the birth of a child was held no revocation of a will made after marriage in the case of Doe v. Bradford, 4 M. & S. 10. SECT. 20. This section follows the provisions of the sixth section of the Statute of Frauds, and defines the form to be observed in revoking a will by an express act. This may be done by another will or codicil duly executed, or by any writing executed like a will, and declaring an intention to revoke, or by destruction with such intention. Sections 5 & 6. In the Statute of Frauds there is a difference in Onions v. Tyrer, the forms prescribed for executing wills and writings of revocation; the former being required to be attested in the presence of the tes 1 P. W. 343. tator, but not required to be signed in the presence of the witnesses; while the latter is required to be signed in the presence of the witnesses, but not required to be signed by the witnesses in the presence of the testator. This is avoided in the present act. In other respects it is apprehended that the principle which has regulated the decisions upon the subject of the revocation of devises of real estates under the sixth section of 29 Car. 2, will still obtain in considering the direct revocation of wills, both of real and personal property, under 1 Vict. c. 26. It is apprehended that subsequent void devises, as a devise to a charity, or a devise contrary to the rule against perpetuities, will still be held to be revocations of prior inconsistent wills. SECT. 20. A slight difference is further observable in the wording of this section, and of the sixth section of the Statute of Frauds, with regard to cancellation. The words used in the Statute of Frauds are burning, cancelling, tearing, or obliterating. In this statute the words are burning, tearing, or otherwise destroying, with the intention of revoking: the words cancelling and obliterating being omitted. The obliteration of any portion of a Cowp. R. 52 ; will is provided for by the next section. The Hyde v. Hyde, 1 Ab. Eq. 409; intention of the testator has always governed the 1 P. W. 344; decisions which have been made upon the suffi- Mr. Cox's note; ciency of the act of cancelling; therefore the ad- 2 Bl. 1043; dition of the words-with the intention of re- 3 B. & A. 489. Bibb v. Thomas, Doe v. Perkes, SECT. 20. 4th Report of Real Property Commissioners, p. 30. Obliteration, &c. of Real Pro- voking-will effect no alteration in the principle to be observed on this head. Before the passing of 1 Vict. c. 26, wills of copyholds and customary estates not being within the Statute of Frauds, and also testamentary appointments of guardians, might be revoked by parol. It was also doubtful whether devises of estates pur autre vie might not be revoked in the same manner. SECT. 21. This section enacts, that no obliteration, interlineation, or other alteration in a will shall have Fourth Report any effect, unless executed as a will. Though the Statute of Frauds declared, that a devise should be revocable by cancelling or obliterating the will, yet such acts have not been held to be in themselves conclusive revocations. They have been considered to be equivocal acts, and to afford only a presumption of an intention to revoke, which might be rebutted by parol or other evidence, that they were done under an erroneous impression, or in sport. [See cases cited at page 63.] When there were duplicates of a will, the cancelling of one part afforded a slighter presumption of an intention to revoke than the cancelling of both, and in all cases the strength of the presumption has depended upon the circumstances, and upon the fact of the cancelling the duplicate being done animo revocandi. And where the cancelling was begun animo revocandi and left 2 Vern. 742; 1 P. W. 346; Burtenshaw v. Gilbert, Cowp. 49. Mason v. Lim. bery, 4 Burr. 2515. incomplete, it was presumed that the testator re SECT. 21. pented and stopped before he had completed the Doe v. Perkes, act of revocation. 3 B. & A. 489. In Burkitt v. Burkitt it was held, that a testator 2 Vern. 498. might cancel his will in part, by obliterating some of the devises contained in it subsequently to its execution. But it must be a matter of difficulty to ascertain the intention and effect of obliterations and interlineations made in a complete instrument, by an unlearned testator. See the cases of Sutton v. Sutton, Cowp. 812; Winsor v. Pratt, 2 Brod. & Bing. 650; Larkins v. Larkins, 3 Bos. & Pul. 16; Short v. Smith, 4 East, 419. Therefore it seems highly expedient that no alteration should be made in a will without observing the same formality which was necessary to be observed at its original execution. SECT. 22. Revival. Fourth Report of Real Pro Before the passing of this act, a will with respect to freehold estates, which had been revoked and made void, might be revived by re- perty Commispublication; or, if revoked by another will, might sioners, p. 33. be revived by a codicil, which would have the Goodright, effect of revoking such other will; or might be revived, though not re-published, by the cancel- Glazier, 4 Burr. ling or destroying the subsequent will. And a Harwood v. Lofft. 576. 2512. See contrà Ex will with respect to personal and copyhold estates parte Hillier, 3 might be revived by mere parol declarations, or Atk. 798. even by parol evidence that the testator treated it as unrevoked. Re-publication is abolished by |