plete did not destroy the will (d). If a will proved to have been in the testator's possession cannot be found, the presumption is that he has destroyed it, but if it be found, though partly torn or burnt, it must be shown affirmatively that the act was done with an intention to destroy. If a person has not a disposing mind so that he cannot make a will, he cannot destroy one already made. Hence no act of spoliation done by the testator, while in a state of delirium or insanity, or under restraint or fear, will revoke the will. tion in a will shall have any effect unless exe will. XXI. And be it further enacted, that No alterano obliteration, interlineation, or other alteration made in any will after the execution thereof, shall be valid or have any effect, except so far as the words cuted as a or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as herein-before is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. (d) Doe v. Perkes, 3 B. & A. 489. No will revoked to be than by re a revive it. No obliteration, interlineation, or other alteration, &c. shall have any effect.]--Prior to this statute an interlineation or obliteration was evidence to go to a jury of an intention in the testator to revoke the disposition so altered, though the alteration could not be set up in the case of a devise for want of due attestation. By the present enactment, such alterations, unless attested, are to have no effect at all, so long as the original words can be made out. A memorandum referring to such alteration.]—It will be sufficient if the testator acknowledge his sig-. nature to the memorandum in the presence of the witnesses who subscribe it without reference to the alterations. XXII. And be it further enacted, that revived no will or codicil, or any part thereof, otherwise which shall be in any manner revoked, execution or shall be revived otherwise than by the codicil to re-execution thereof, or by a codicil executed in manner herein-before required, and showing an intention to revive the same; and 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 a person by a second will or codicil revoked a prior will, yet if he kept the same undestroyed, and afterwards cancelled the second, the first was revived. Such at least appears to have been the rule in Courts of Law, though in the Ecclesiastical Court it has been held otherwise. (e) And a presumptive revocation by marriage and the birth of a child admitted of a presumptive revival by the death of the latter. It is probable that in a great majority of cases of presumptive 'revival, the intentions of the deceased were frustrated by the rule of law, particularly when made to depend on other presumptions. Thus if it appeared that a second will had been executed, and that after execution it remained in the custody of the testator, but on his death could not be found, a presumption arose that he had destroyed it, and then the former will was revived. The present statute takes away all presumption in so important a matter as the setting up or annulling a will. Re-execution.]-The testator, it seems, must sign it again. The acknowledgment of the former signature before fresh witnesses would not be strictly a re-execution. Partly revoked, and afterwards wholly revoked, &c.] -If a codicil made to revoke a disposition in the will be subsequently destroyed, the original disposition is not revived, and if the testator afterwards marry, or if he make a new will, and then, having destroyed the latter, simply re-executes the original will, it revives only so much as was not covered by the codicil. Such a re-execution should express the date, and how much was intended to be revived. An instrument, whether a will, codicil, or paper of revocation, once completely executed, will operate to annul a prior will, though it be destroyed the moment afterwards. XXIII. And be it further enacted, A devise that no conveyance or other act made or rendered in (e) Hamrod v. Goodsign dem. Rolfe, 1 Cowp. 87; Moore v. Moore, 1 Phil. 375, 406; Horton v. Head, 3 Phil. 26. not to be any subse quent con act. operative by done subsequently to the execution of a will of or relating to any real or perveyance or sonal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. Before this statute, if the testator, subsequently to the making of his will, parted with the specific estate he had at the time of disposing of it, or had even contracted to part with it, the will was revoked. As at the time of the inception of the will, he must have been seised of the estate he devised, so the law required that such estate should remain in him unaltered and uninterrupted to the time of its consummation by his death (k). At law a conveyance in fee, though for a special and limited purpose, as a mortgage (1), a recovery, the limitations being to the old uses (m), a feoffment to the use of the devisor in fee (n), or any other act which destroyed the identity of the thing devised, operated as a revocation of the devise. The same effect was given to an act which merely indicated an intention to make a different disposition; an imperfect conveyance, as a feoffment without livery (0), a grant of a reversion without attornment (p), an appointment (k) See Rose v. Griffiths, 4 Burr. 1960. not duly executed (q), a subsequent devise void in law (r), equally operated to revoke. An exception prevailed in the case of a partition, if the object extended no farther; but the slightest addition thereto, as a power of appointment prior to the limitation of the uses, amounted to a revocation (s). The same rule obtained in equity with regard to equitable estates. Thus, if after devising an estate, the testator entered into a contract to sell it, though the contract was rescinded after his death (t); or if, having contracted to purchase, he devised his interest in the estate, and afterwards took a conveyance different from that which he could have enforced under the contract, as to himself and a trustee to bar dower, the devise was revoked (u). With the single exception above noticed, a court of law could look no farther than to see whether the interest remained the same in the devisor at his death, as at the date of his will; if not, whether the purpose was general or partial, whether by way of charge or not, it was a revocation. In equity, however, if the conveyance were not purely voluntary, as if made for charges, or incumbrances, or to pay debts, and it went no farther than the particular purpose required, it was only a revocation pro tanto (x), unless made to the devisee himself (y). So, if the same estate and interest remained in the testator, subject to the same disposition, though changed as to the legal or equitable quality, as where, in pursuance of marriage articles, he covenanted to convey to certain uses, with an ultimate remainder to his (1) Ex parte Ilchester, 7 Ves. 374. (r) Roper v. Constable, 8 Vin. Ab. 141. (s) Knolys v. Alcock, 7 Ves. 558. (t) Bennett v. Earl Tankerville, 19 Ves. 171. (u) Ward v. Moore, 4 Mad. 368. (x) Brain v. Brain, 6 Mad. 221; Earl Temple v. Dr. Chandos, 3 Ves. 685. (y) Harkness v. Bailey, Prec. Ch. 514. |