CHAPTER VI.

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Revocation of Wills.

It is one of the well-understood qualities of a will, at the present time, that it is revocable during the testator’s lifetime. It was shown, in a former part of this work, that this quality did not in early times attach to a will; that a will, at first, was in the nature of an executed contract; a conveyance, in fact, and irrevocable.[231] However, as a will has no effect until death, it necessarily follows that a person has full control of the subject-matter, and can change his mind as he pleases regarding its disposition so long as he lives. This is now accepted as a postulate in the law of wills.[232] The only inquiry, therefore, will be as to what acts or occurrences shall be deemed sufficient to revoke a will previously made.

There are two modes in which a will may be revoked: First, it may be revoked by the happening of some events subsequent to the making as, in the judgment of law, will amount to a revocation. We may term this an implied revocation. Secondly, it may be revoked by a certain deliberate act of the maker, intending to cancel a previous will, or with animo revocandi, as the legal phrase is.

The events which would operate to produce an implied revocation of a will were formerly a subject of wide and constant discussion. The courts in England, and until lately in this country, occupied themselves very frequently in discussing this subject of implied revocation, and, for a long time, there was no general agreement on the precise events that would, in the judgment of law, amount to a revocation. At an early period in the English law, it was determined that the marriage of a feme sole was sufficient to revoke a will made by her previous to her marriage. It was expressed thus, in the quaint language of the time: “It was adjudged, on great deliberation, that the taking of a husband, and the coverture at the time of her death, was a countermand of the will.”[233] This enunciation of the law has ever since prevailed as a principle in the law of wills. But a similar marriage in the case of a man did not have the same effect. The courts were at first not agreed as to whether the birth of a child after the making of a will would be sufficient to effect a revocation. In one case, it was decided that this event alone did not amount to a revocation;[234] but in another case, where there were four children born subsequently to the making of the will, this, combined with other circumstances, was held to be a revocation.[235] It came to pass that the courts became finally agreed on the question that marriage, together with the birth of issue, was sufficient to effect a revocation of a will.[236]

In the application of this rule, cases of great hardship have sometimes occurred; but it has been steadily adhered to, even under circumstances in regard to real estate, at least; as where the testator left his wife enceinte without knowing it, as was the case in Doe v. Barford, above, where Lord Ellenborough held that the birth of a child alone, even under these circumstances, was not sufficient to revoke the will which was made after marriage. He said: “Marriage, indeed, and the having of children, where both these circumstances have occurred, has been deemed a presumptive revocation; but it has not been shown that either of them singly is sufficient. I remember a case some years ago of a sailor who made his will in favor of a woman with whom he cohabited, and afterwards went to the West Indies, and married a woman of considerable substance; and it was held, notwithstanding the hardship of the case, that the will swept away from the widow every shilling of the property, for the birth of a child must necessarily concur to constitute an implied revocation. In Doe v. Lancashire, 5 T. R. 49, it was adjudged that marriage and the pregnancy of the wife, with the knowledge of the husband, and the subsequent birth of a posthumous child, came within the rule, the same as if the child had been born during the parent’s life.”

This subject was elaborately examined by Chancellor Kent, in the case of Brush v. Wilkins,[237] where the authorities from the earliest times were quoted and examined, and the same conclusion reached.

This inquiry is not of much practical importance now, either here or in England, for statutory enactments have laid down the law precisely and satisfactorily as to what circumstances shall be deemed sufficient to produce the revocation of a will. And this is very desirable, since much uncertainty and discussion is thereby avoided, and the devolution of property exactly determined.[238] There is scarcely a State we know of where statutes have not been passed, setting the matter at rest, and fixing the law on the subject.

By the recent English statute, wills are held absolutely revoked by the subsequent marriage of the testator, whether made by a man or woman, unless such will be made in execution of certain powers; and it is further provided that no will shall be revoked, by any presumption of intention, on the ground of an alteration of circumstances.

In the statutes of the different States there is this difference: In some, the birth of a child after making a will, where such child is unprovided for, will work a revocation; while in others, it will only revoke it pro tanto, that is, so as to allow the child to have the same share as if the parent died intestate.

In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids the will in toto.[239]

By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, and California, children born after the making of the will inherit as if the parent died intestate, unless the will comprises some provision for them, or they are particularly referred to in it. The will is thus revoked pro tanto.[240]

In Virginia and Kentucky, the birth of a child after the will, if there were none previously, revokes the will, unless the child dies unmarried or an infant.[241]

The statute law of some States goes further, and entitles not only children but their issue to claim portion of testator’s estate, if such children were unprovided for, and unmentioned in the will. This is the case in the California code,[242] and in Maine, New Hampshire,[243] Rhode Island, and Massachusetts.

By the New York revised statutes, if a will disposes of the whole estate, marriage and the birth of a child revoke the will, if either the wife or child survive the testator.[244] Parol evidence is not admissible to rebut this presumption. Wherever the question has arisen, it has generally been held, even in the States where by statute children omitted in the will of the parent are entitled to the same share of his estate as if he had died intestate, that marriage and the birth of issue, after the making of a will, do amount to an implied revocation of the will.[245]

In many of the States, marriage alone, after making the will, amounts to a revocation. In Virginia, it is revoked by marriage;[246] also, in West Virginia; so in California, unless a provision be made for the wife.[247] In others, it only revokes the will pro tanto, as in Pennsylvania and Delaware.[248] In the State of Illinois, where the husband and wife are made heirs to each other, marriage by the testator after making his will, wherein no provision in contemplation of such new relation exists, amounts to a revocation.[249] The marriage of a woman after making her will, will produce a revocation in general. It is so in New York and California;[250] and in California it is not revived by death of the husband. This provision is in harmony with the early cases in England.[251]

It must not be inferred from the previous statement that a testator has no power to disinherit or cut off a child. The law does not withhold this power; it only presumes, by the omission to mention the name of a child in a will, that the claim of that child was overlooked by the testator, and the court, exercising its equitable power, interferes on behalf of such child to see it gets its due share of the property. But where the intention is expressed, and much more so where a reason is given, for cutting off a child from a participation in a testator’s property, the courts cannot interfere in behalf of such disinherited child, unless on some imputation of insanity or undue influence.

Another, and a more usual mode in which a will may be revoked, is by an express deliberate act of the testator. This may be done by a subsequent testamentary document, or by some physical destruction or cancelation of the will. A very common phrase used in a will is: “And I hereby revoke all former and other wills and testamentary dispositions by me at any time heretofore made.” However, the insertion of a clause like this is not of much importance, as a will professing to dispose of the whole of a testator’s property necessarily displaces and supersedes all antecedent testamentary instruments.[252] Such a clause might be useful in those instances in which the intention to dispose of the entire estate was not so clearly manifested as to preclude attempts to adopt, wholly or partially, the contents of former wills as part of the testator’s disposition; since a will may be composed of several papers of different dates, each professing to be such when they are capable of standing together.[253]

Mere proof of the execution of a subsequent will, therefore, is not sufficient to invalidate a prior will. There must be proof of a clause of revocation, or there must be plainly contrary or inconsistent provisions.[254] And where the contents of the last will cannot be ascertained, it is not a revocation of the former will. This was decided by the Court of King’s Bench in England, more than one hundred and fifty years ago, in the case of Hutchins v. Bassett;[255] and that decision was subsequently affirmed upon a writ of error in the House of Lords. In the subsequent case of Harwood v. Goodright,[256] which came before the Court of King’s Bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained; although it was found by a special verdict that the disposition which the testator made of his property by the last will was different from that made by the first will, but in what particulars the jurors could not ascertain. This case also was carried to the House of Lords upon a writ of error, and the judgment was affirmed. As these two decisions of the court of dernier resort in England were previous to the Revolution, they conclusively settle the law on this subject here.[257]Again, where there are several codicils or other testamentary papers of different dates, it is a question of intention upon all the circumstances of the case, which and how far either is a revocation of another, or whether the dispositions of the latter are to be considered as additional and cumulative to those of the prior. Parol evidence, however, is not to be admitted in order to investigate the animus with which the act was done, unless there is such doubt and ambiguity, on the face of the papers, as requires the aid of extrinsic evidence to explain it.[258]

In a late case,[259] the subject of receiving parol evidence in regard to the fact and intent of the revocation of wills, is very carefully examined, and the principle declared, that where the testator executed a will, and subsequently executed another, which he took away with him, and which on his decease could not be found, the earlier one being found, that the solicitor who drew the will, or any other witness familiar with its contents, might give evidence thereof; and it appearing that the provisions of the later one were inconsistent with those of the former, it was held to amount to a revocation. The practice, in the American courts, of receiving parol evidence of the contents of a lost will, seems to be universal, and without question, notwithstanding the stringent statutory requirements in regard to the mode of executing wills.[260] The evidence must come from witnesses who have read the will, and whose recollection of its contents is trustworthy.[261] But in cases of fraud, more indulgence is allowed to the proof, and in Jones v. Murphy,[262] the court said: “It is better, surely, that a person should die intestate than that the spoliator should be rewarded for his villainy.” The English courts do not grant the same indulgence to admit alleged lost wills to probate. In a late case, where the contents of the will were propounded for probate after a delay of seven years, and no sufficient explanation given of the manner or cause of the loss, and when no draft of the will could be produced, but only oral proof of its contents, due execution, and that it could not have been revoked, probate was denied.[263]

The question as to what extent a codicil shall control the provisions in the will is not always easy of solution. Each case depends almost exclusively upon its own peculiar circumstances, and will not, therefore, be much guide to others, unless the facts are very similar. But the general rule of construction is that already stated, to allow all the provisions of the will to stand which are not inconsistent with those of the codicil, and in determining this, to seek for the intention of the testator, as far as practicable.[264] Where a codicil refers to the former of two inconsistent wills, by date, as the last will of the testator, it has the effect to cancel the intermediate will, and evidence of mistake cannot be admitted.[265] Where a codicil named the wife as “sole executrix of this my will,” it was held that the appointment of other executors in the will was revoked.[266]

It has been held that a revocation is not valid, in most of the American States, unless done with the same formality required in the execution of the will itself.[267]

Thus, writing the word “obsolete” on the margin of his will by the testator, but without signing the same in any of the modes allowed by law, will not amount to a revocation.[268]

In a somewhat recent case in Pennsylvania, the question of revocation arose, in regard to a bequest to charity.[269] The court held that, where there are two wills, in some respects inconsistent, the latter revokes the former only so far as they are inconsistent with each other, unless there is an express clause of revocation. But where the property given specifically in the first will is, in the second, contained in a general devise to the same objects, and for the same purpose, and the appointment of other executors, there is a manifest inconsistency, and it evinces an intention that both wills should not stand.

Many times it happens that a testator, dissatisfied with an executor or devisee named in his will, erases the name of such executor or devisee; but this will not always effect his purpose, as it should be done by a subsequent codicil, properly executed. Thus, where a testator (without a republication of his will) made alterations and corrections in it, with the intent, not to destroy it, but to enlarge and extend a devise already made, it was held not a revocation of the devise.[270]

The physical destruction or cancelation of a will by a testator is the most palpable and unmistakable mode of its revocation. In what manner or in what different modes this may be done was first laid down in the Statute of Frauds, where revocation was to be effected by “burning, canceling, tearing, or obliterating” the will. These four phrases have been generally adopted and inserted in our statutes, with either some modification or enlargement.

The enumeration of these several modes for the destruction of a will by a testator, to amount to its revocation, has not prevented controversy and uncertainty; for law cannot define acts in words so precisely and unmistakably as to preclude all doubt and quibbling. There are sure to be some who will play upon words—a mental recreation to which legal minds are somewhat given—and who will insist upon an exact literal conformity when a revocation is sought to be maintained under this provision. It would seem to an ordinary mind hardly possible to admit of a doubt that cutting a will was, in effect, equivalent to tearing; yet a legal quibble went so far as to question this, when it became necessary to decide that cutting was, in effect, the same as tearing.[271] Probably, the legislature of West Virginia took into consideration a knotty question of this kind, and took good care to save a legal luminary stumbling over a question of this sort; for, by the statute of that State, it is provided that a revocation in this manner may be effected by “cutting, tearing, burning, obliterating, canceling, or destroying the same.”

To avoid any limited construction of the words as used in the English Statute of Frauds, it is generally provided in our statutes that a revocation may be made as in that statute, or by otherwise destroying the will.[272] This cuts off a great deal of uncertain construction, and removes a great temptation for fine legal distinctions. In the New York statute, a revocation is effected in this way, if the will is burnt, torn, obliterated, canceled, or destroyed, with intent and for the purpose of revoking the same.[273]

The statute very wisely requires two things to be combined before it concludes that a will is revoked. There must be the act of destruction with the intent, or the animo revocandi, as the law terms it. Under the English statute, it had been determined that the mere acts named will not constitute a valid revocation unless done with the intent to revoke.[274] Lord Mansfield here explains very graphically the acts which might often occur, which would destroy the writing, but would not amount to a revocation of the will; as, if a man were to throw ink upon his will instead of sand; or, having two wills, of different dates, should direct the former to be destroyed, and by mistake the latter is canceled. In neither case would it amount to a revocation of the will, although the writing were irrevocably gone.

Revocation is an act of the mind which must be demonstrated by some outward and visible sign. The statute prescribes what those signs are. If any of these are performed in the slightest manner, joined with a declared intent to revoke, it will be an effectual revocation.[275]

It would be manifestly a harsh and an unjust construction to place upon the statute, that because a will was destroyed in any one of the modes pointed out, that a strict interpretation required a revocation. Hence, where the destruction was done unadvisedly, or by some other casualty, it was held, it could not amount to a revocation. Thus, where a will was gnawed to pieces by rats, but the pieces, being collected, were afterwards put together, the will was admitted to probate.[276]

And in Perkes v. Perkes,[277] a testator having quarreled with a person who was a devisee in his will, in a fit of passion took the will out of the desk, and, addressing some words to a bystander, tore it twice through, but was prevented from proceeding further by the interference of the other person and the submission of the devisee; and he then became calm, put up the pieces and said: “It is a good job it is no worse”; and after fitting the pieces together, added: “There is nothing ripped that will be any signification to it.” The jury found that the act of canceling was incomplete at the time the testator was stopped; and the court was of opinion that that conclusion was right, and that the will was not revoked.

Where a testator, with an intent to revoke his will, endeavors to destroy it in some of the modes pointed out, but through the fraud, imposition, or other deception of a person; the act is prevented being completed, it shall not prevent a revocation. The following case is a striking one, and illustrates this principle. A testator, (who had for two months declared himself discontented with his will) being one day in bed near the fire, ordered M W, who attended him, to fetch his will, which she did and delivered it to him, it being then whole, only somewhat erased. He opened it, looked at it, then gave it something of a rip with his hands, and so tore it as almost to tear a bit off, then rumpled it together, and threw it upon the fire, but it fell off. It must soon have been burnt, had not M W taken it up, which she did, and put it in her pocket. The testator 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. The testator, several times afterwards, said that was not and should not be his will, and bid her destroy it. She said at first, “so I will, when you have made another”; but afterwards, upon his repeated inquiries, she told him that she had destroyed it, though in fact it was never destroyed, that she believed he imagined it was destroyed. She asked him who his estate would go to when the will was burnt; he answered, to his sister and her children. He afterwards told a person that he had destroyed his will, and should make no other until he had seen his brother, J M, and desired the person to tell his brother that he wanted to see him. He afterwards wrote to his brother, saying, “I have destroyed my will, which I made, for upon serious consideration, I was not easy in my mind about that will,” and desired him to come down, saying, “If I die intestate, it will cause uneasiness.” The testator, however, died without making another will. The jury, with the concurrence of the judge, thought this a sufficient revocation of the will, and on a motion for a new trial it was so held, and that throwing it on the fire, with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute.[278]

The English courts are more strict in requiring a substantial compliance with the statute than our courts are. In the American cases, the intention is looked upon as the most material and controlling element: as where a testator asked for his will on his sick bed, and was handed an old letter, which he destroyed, supposing it to be his will, it was held to be a good revocation.[279]

And where a testator threw his will upon the fire, animo revocandi, and it was taken off and preserved, before any words were burned, and without the testator’s knowledge, it was decided, by a very able court, that it did amount to revocation.[280] So, where a testatrix burns a paper, which she supposes to be her will, and by mistake or the fraud of others burns a different paper, and remains under this misapprehension during her life, it amounts, in law, to a revocation.[281] But in a case in Vermont it was held that the mere intention or desire to revoke one’s will, until carried into effect in the manner prescribed in the statute, can have no effect; however, if such intention is defeated by fraud, a court of equity will prevent a party moving from any benefit of such fraud.[282]

The two words “canceling” and “obliterating” have occasioned more uncertainty than the others used in the statute, because it is not so easily or exactly determined what acts shall amount to a cancelation and what to an obliteration of the will. In one case, the will was found with another testamentary paper, but the place in which the names of the attesting witnesses should have appeared, upon the latter, was scratched over with a pen and ink, so that no letter of a name could be deciphered: it was held that this paper was thereby revoked, and the will was admitted to probate alone.[283]

It seems to be settled, that from the fact of interlineations and erasures appearing upon the face of a will, no such presumption arises, as in the case of deeds and other instruments, that they were made before execution. But in regard to a will the case is different. Hence, where the testator makes an alteration in his will by erasure and interlineation, or in any other mode, without authenticating such alteration by a new attestation in the presence of witnesses, or other form required by the statute, the will, therefore, stands in legal force the same as it did before, so far as it is legible after the attempted alteration,[284] but if the former reading cannot be made out by inspection of the paper, probate is decreed, and such illegible portions are treated as blanks.

In a case in Pennsylvania,[285] where the will was found in the testator’s private desk, with the seals of the envelope broken, and a black line drawn through the name of the testator, and there was no evidence how or with what intent it was done, it was held a sufficient revocation. Vice-Chancellor Wood, in a case in New York,[286] decided that where a testator, having torn off the signature from the first four sheets of his will, and struck his pen through the signature upon the remaining sheet, the animus revocandi being proved, it was a sufficient revocation.

The clearest statement of the law on this head was made by an eminent judge, whose language very clearly sums up the law. Chief Justice Ruffin, in a case in North Carolina,[287] says:

“The statute does not define what is such a cancelation or obliteration as shall amount, conclusively, to a revocation of a will. Burning, or the utter destruction of the instrument by any other means, are clear indications of purpose which cannot be mistaken.

“But obliterating may be accidental, or may be partial, and therefore is an equivocal act, in reference to the whole instrument, and particularly to the parts that are unobliterated. So, canceling, by merely drawing lines through the signature, leaving it legible, and leaving the body of the instrument entire, is yet more equivocal, especially if the instrument be preserved by the party, and placed in his depository as a valuable paper. It may be admitted that the slightest act of cancelation, with intent to revoke absolutely, although such intent continue but for an instant, is a total and perpetual revocation, and the paper can only be set up as a new will. But that is founded upon the intent. Without such intention, no such effect can follow; for the purpose of the mind gives the character to the act. When, therefore, there appears a cancelation, it becomes necessary to look at the extent of it, at all the conduct of the testator, at what he proposed doing at the time, at what he did afterwards.... For, although every act of canceling imports, prima facie, that it is done animo revocandi, yet it is but a presumption which may be repelled by accompanying circumstances.”

There seems to be no question, according to Jarman,[288] that, under the Statute of Frauds and other similar statutes, as parts of an entire will may be revoked, in the same mode the whole may be so revoked. The same rule has been adopted in this country, to some extent. The question was ably examined by Surrogate Bradford, in a case in New York.[289] In that case, a testator, after his will had been prepared and executed, becoming dissatisfied with one of the devisees, his own daughter, struck out the devise to her, which was contained in these words: “To my beloved and only daughter, Sarah Ann McPherson, I give and bequeath,” etc. In a note to the foot of the page, he gave as a reason for striking out this devise, the bad treatment of his daughter, and afterwards altered a phrase in his will where “children” was used, and substituted “sons” instead, so as to exclude the said daughter. In examining this question, the learned Surrogate assumed that a part of a will might be obliterated in the same mode as the whole, and referred to various decisions in support of this view. He, however, held that, as the subsequent alteration, substituting “sons” for “children,” was invalid, not having been re-witnessed, as is required, that the obliteration of the devise was not effectual as to that part, and could not be treated as a revocation.

In Kentucky, in the case of Brown’s Will,[290] it was declared that a cancelation of a portion of the devises, the testator’s signature being left untouched, did not affect the residue of the dispositions, which remained unaltered, the testator’s intention not to revoke them being clearly established.


                                                                                                                                                                                                                                                                                                           

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