the defendant (the devisee under the former will) destroyed the latter will, but what is become thereof they are ignorant. De Grey chief justice, Gould and Nares justices, were of opinion, that this was a sufficient revocation of the former will, to let in the title of the heir at law; it being proved to be the last will of the testator, and containing a different disposition from the former will, although in what particulars it did not appear. Blackstone justice was of opinion, that this was not a sufficient revocation, because it did not specifically appear, that the latter revoked the former: and nothing shall be presumed on a special verdict: It is setting up a second will in the dark, which neither the court nor jury ever saw, and of the contents whereof they are wholly ignorant. Upon this, a writ of error was brought in the king's bench; and there the court unanimously reversed the judgment of the common pleas. Afterwards, a writ of error being brought in parliament, the house of lords upon hearing the opinion of the barons of the exchequer in favour of the judgment of the court of king's bench, affirmed the judgment of that court, that this was not a sufficient revocation. 3 Wils. R. 497. Black. Rep. 937.

[Or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, and by his directions and consent and herein First of burning, tearing, and cancelling.] M. 16 G. 3. Mole and Thomas. William Palin having several times declared himself discontented with his will, being one day in bed near the fire, ordered Mary Wilson who attended him, to fetch his will, which she did, and delivered it to him; it being then whole, only somewhat creased. He opened it, looked at it, then gave it something of a rip with hands, and so tore it as almost to tear a bit off; then rumpled it together, and threw it [202] on the fire: but it fell off. However it must soon have been burned, had not Mary Wilson taken it up, and put it in her pocket. Palin did not see her take it up, but seemed to have some suspicion of it, as he asked her what she was about, to which she made little or no answer. He at several times afterwards said, That was not, and should not be his will, and bade her destroy it. She said at first, So I will, when you have made another. But afterwards, upon his repeated inquiries, she told him she had destroyed it, though in fact it was never destroyed. She asked him, when his will was burned, whom his estate woul go to. He answered, to his sister and her children. He afterwards writ to his brother John Mills, telling him he had destroyed his will, and would make no other till he had seen him, and desired him to come; for (says he) if I die intestate it will cause uneasiness. However he died without making any other will. The jury thought this a sufficient revocation, and gave a verdict for the heir at law. It was moved for a new trial. But the

court were of opinion that this was a sufficient revocation; and said, that a revocation under the statute may be effected, either by framing a new will amounting to a revocation of the former, or by some act done to the instrument itself, as burning, tearing, cancelling, or obliteration, by the testator, or in his presence, and by his direction; any of these, joined with a declared intent, is a sufficient revocation within the statute. Black. Rep. 1043.(9)

(9) The act of cancellation or destruction is prima facie done animo cancellandi, and is a presumptive intention to revoke till the contrary is shewn. This is the legal presumption; but, like all other such presumptions, may be repelled by evidence. Rickards v. Mumford and another, 2 Phil. R. 23.; for, in order to explain any act of cancelling, tearing, defacing, &c. parol evidence must be let in, per lord Mansfield in Burtenshaw v. Gilbert, Cowp. R. 49. 52. 87.; see also Bibb v. Thomas, 2 Bla. R. 1043.: for the act of cancelling is an equivocal act and in order to make it a revocation, it must be shewn quo animo the will was cancelled; for a complete defacing or destruction of the instrument, made by mistake or accident, can be no revocation of the will. See the above cases, and Onyons v. Tyrer, 2 Vern. 743. 1P.Wms. 345. Pre. Ch. 459. Thus, where an instrument was proved to have once existed as a finished will, but to have been cancelled under an erroneous impression that the testatrix had no power to make it at the same time, that she adhered to it throughout in mind and intention, notwithstanding such cancellation. Thynne (lordJames) v. Stanhope, 1 Add. R. 52.

Again: The presumption which operates against every cancelled paper may be rebutted, by shewing that it was not cancelled by the testator, or by his order, or at the time of his death, but that the cancellation was subsequent to his death, and the paper will be admitted to probate. Sylva v. De Feria, M. T. 1789. cor. Sir W. Wynne, MSS. Cas. 124. So in Trevelyan v. Trevelyan, 1 Phil. R. 149. a will of personalty destroyed in the lifetime of the testator, but without his knowledge, was admitted to proof as contained in the deposition of the witness.

In short, questions of revocation are mere questions of intention; and all which rests with the court in respect of them, is to put a rational construction on the act of revocation. If a testator tears off or effaces his seal and signature at the end of a will, the court will infer an intention to revoke the whole will; this being the ordinary mode of performing that operation. If he on the other hand obliterates a particular clause; this on the same principle operate only as a revocation pro tanto, or of that particular clause: and so if part of a sheet be torn off or cut through. Scruby and Finch v. Fordham and others, 1 Add. Rep. 78. So in the civil law, D. 28. 4. 3. Mantica de Conj. ult. Vol. 1. xii. tit. 1. No. 31. By the civil law, if the testator mutilated a will himself, the heir could not claim under it; but if it could be shewn that another had mutilated it, the will was good. Dig. lib. 28. tit. 4. c. 3. Therefore, when an instrument which from circumstances (Voet. ad. Pand. lib. 28. tit. 4.) appears to have been so mutilated by the testator, the court must put some

Even a latter will, though in other respects void, yet may be a sufficient revocation of the former. As where there was a

construction on the act, and it will be insufficient to say that the testator had done it in sport or to while away a vacant half-hour if he did it with whatever motive advisedly, the law will fasten on him the conclusion that he did it, animo cancellandi. 1 Phill. Rep. 407, 408. Mutilation of a will by the testator has been held to amount to cancellation, and that cancellation not to revive a prior will of nearly similar import. Moore and Metcalf v. De la Torre v. Moore, 1 Phill. Rep. 375. So held before the delegates, Moore v, Moore & Metcalf. Id. 406. Where the testator being moved with a sudden impulse of passion against one of the devisees under his will, conceived the intention of cancelling it and of accomplishing that object by tearing, and after he had partly done so, but before he had completed his purpose, was diverted therefrom by the interference of a byestander, and proceeded no further in its destruction, but expressed himself satisfied" that it was no worse;" and the jury found that the act of cancelling was incomplete at the time the testator was stopped; the court held that they had drawn a right conclusion from the evidence. For to effect a revocation within 29 Car. 2. the act of cancelling by tearing, &c. must be complete; and refused to disturb the verdict. Doe v. Perkes, 3 B. & A. Rep. 489. If there are two parts of a will, one part of which testator keeps himself and deposits the other with some other person, and then voluntarily cancels or destroys the part in his own custody, it is a revocation of both. This is a legal presumption: but like all other legal presumptions, may be repelled by evidence. Rickards v. Mumford and another, 2 Phil. Rep. 23.

Revocation by obliterating the will by the testator himself or in his presence and by his direction and consent. If a testator obliterates a particular clause, this being a question of intention, it is held to operate as a revocation, pro tanto or of that particular clause. Scruby and another v. Fordham and others, 1 Add. Rep. 78. Sutton v. Sutton, Cowp. 812. Where one devised lands to two trustees in trust for certain purposes by a will duly executed and attested, and afterwards struck out the name of one of those trustees, and inserted the names of two others, leaving the general purposes of the trust unaltered, though varying in certain particulars, and did not re-publish his will: Held that as this intent appeared to be only to revoke by substituting another good devise to other trustees, which new devise could not take effect for want of the proper requisites of the statute of frauds, so it should not operate as a revocation: or at most it could only operate as a revocation pro tanto as to the trustee whose name was obliterated, leaving the devise good as to the old trustee, whose name was retained. Short d. Gastrell v. Smith, 4 East, R. 419. In Larkins v. Larkins, 3 B. & P. 16. 109. it was held, that if a testator having executed a devise of lands in the presence of three witnesses, to two persons as joint tenants in fee, afterwards strikes out the name of one of the devisees, and there is no re-publication, he erasure only operates as the revocation of the will pro tanto.

[203]

[Implied revocation

of a will.]

devise of lands to one, and afterwards the devisor by a will duly executed and attested, devised the lands to another who was a papist: it was decreed, that both the devises were void: for though the latter was void as a will, yet it was good as a revocation. 2 Abr. Eq. Cas. 771. (s)

But a will which will pass personal estate, is not a sufficient revocation of a former will whereby a real estate is devised. Comyns 451.

And although the statute says, that no will in writing concerning personal estates shall be repealed by word of mouth only, except the words be put into writing, and read to and allowed by the testator, and proved to be so done by three witnesses; yet where a man by will in writing devised the residue of his personal estate to his wife, and she dying, he afterwards by a nuncupative codicil bequeathed to another all that he had given to his wife, this was resolved to be good: for by the death of the wife, the devise of the residue was totally void; and the codicil was no alteration of the former will, but a new will for the residue. 1 Abr. Cas. Eq. 408.

Also, the statute hath not taken away revocations of wills by act of law; as if the testator afterwards make a feoffment, or do any other act inconsistent with the will: but such revocation remains as before the statute. Carth. 81. (t)

If a man devises lands to one and his heirs, and afterwards mortgages the same lands to another for years or in fee; though a mortgage in fee is a total revocation at law, yet in equity it shall be a revocation pro tanto only. 1. Abr. Eq. Cas. 410. [Baxter v. Dyer. 5 Ves. 656, S. P.]

And the reason is, because a mortgage is not considered as a conveyance of the estate, but only as a charge upon it; being merely a security, and in the consideration of equity carries only a chattel interest; the creditor gains nothing real, it affords no

(s) So a deed intended to operate as an appointment to uses, but not sufficient for that purpose, was held to revoke a will, the party appearing to have had that intention. Shove v. Pincke, 5 T. Rep. 124 and 310. [See ante 198. note 1.]

(t) [And this though the feoffment is void for want of livery and seisin. Moor. 429. 1 Rol. Ab. 614-616.] So if a testator suffer a recovery of, or sell the lands devised. Marwood v. Turner, 1 P. Wms. 165. Arnold v. Arnold, 1 Bro.C. C. 401. [Doe d. Lushington v. Bp. Landaff, 2 New. Rep. 491. S. P. and the same of an equitable estate, Freeman v. Freeman, cor. lord Hardwicke, C. 1 Wils. 308. Or, if he levy a fine, 3 Moore, 24. Parker d. Biscoe v. Dilnot, 2 N.R.401. A contract for sale revokes a devise, Knollys v. Alcock, 5 Ves. 654. A deed intended to operate as an appointment of uses, but not sufficient for that purpose, may have the effect of revoking

dower, and goes to executors. Sparrow and Hardcastle, May 6, 1754. 3 Atk. 798.

But if lands be devised to one in fee, and afterwards mortgaged to the same devisee; this is a revocation in toto, being inconsistent with the devise: but if the mortgage had been to a stranger, it had been a revocation quoad the mortgage only. Prec. Cha. 514.

If a man seised in fee, devises it to one in fee or for life, and afterwards makes a lease to another for years; this, even at law, shall not be a revocation but during the years. 1 Roll's Abr. 616.

So if a husband possessed for forty years, devises it to his wife, and after leases the land to another for twenty years, and dies; this lease is not any revocation of the whole estate, but only [ 204 ] during the twenty years, and the wife shall have the residue by the devise. Id.

But where a man seised of a lease for lives, devised it, and afterwards surrendered the old lease, and took a new one to him and his heirs for three lives; it was decreed, that this renewal of the lease was a revocation of the will as to this particular. For by the surrender of the old lease, the testator had put all out of him, had divested himself of the whole interest; so that there being nothing left for the devise to work upon, the will must fall, and the new purchase, being of a freehold descendible, could not pass by a will made before such purchase, 3 P. Will. 166. 170. [Marwood v. Turner.]

June 10, 1743. Sir Thomas Abney and Miller. The testator by his will devised all his college leases which he then held of Magdalen college to Mrs. Burton, his mother, to be sold by her immediately after his decease, and ordered the money arising by such sale to be distributed according to the directions of the said will. Some years after making the will, he surrendered the college leases devised by it, and accepted two new leases of the premises, but one of them was not sealed with the college seal, till after the death of the testator. Lord Hardwicke decreed, that the lease actually renewed after the will made, was a revocation of the devise (u), but otherwise as to the lease not perfected for want of the college seal. 2 Atk. 593.

But where the testator devised all and singular his leasehold estate, and afterwards renewed a lease; it was held by lord Hardwicke clearly, that this leasehold estate passed by the will: for that this is not a specific legacy, but only an enumeration of the several particulars of the personal estate, but yet is a general devise of the whole. 3 Atk. 199.

Though a covenant or articles do not at law revoke a will; yet if entered into for a valuable consideration, amounting in equity to a will, if the party appear to have had that intention. Shove v. Pincke, 5 T. Rep. 124. 310.j

(u) [And the rule of revocation of wills is the same at equity as at law. S. P. Hone v. Medcraft, 1 Bro. C. C. 160.]