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But where the testator having, under a trust deed, power CHAP. IX. to dispose of certain property by a will attested by two witnesses, which he duly made, and subsequently made a will attested by one witness only, containing an express revocatory clause, and made with the intention that the property should be disposed of according to the trusts of the deed, Sir John Nicholl held that, the disposition intended by the testator being completely effected by the second will, it operated as a revocation.(a) Parol evidence of the testator's intention to revoke is Parol evidence

of intention to not admissible, for a will can only be revoked in the revoke not

admissible. manner mentioned in the statute. Thus, in Daniels v. Nockolds, (b) it was held that a latter will, disposing of realty and personalty and containing a clause of revocation and uncancelled, was not revoked and a former will revived by the testator's reading over the former will and by parol declarations, unaccompanied by acts, that it was his last will, the former will being found carefully deposited and locked up in a drawer, and the latter will, though in the same drawer, lying among useless papers, and all the devises and legacies lapsed.(c) If a second will declares a present intention to revoke Future inten

tion to revoke it will be operative for that purpose, but not if it declares declared in a future intention only. This distinction was taken before

second will

not sufficient. the Statute of Frauds with reference to the sufficiency 3 Mod. 256; Edlestone v.Speake, 435 ; Locke v. James, 11 M. & 1 Show. 89; and see Onions v. W.901. Tyrer, 2 Vern, 741; S. C. nom. (a) Richardson v. Barry, 3 Onyons V. Tryers, Prec. Ch. Hagg. 249. 459; 1 Eq. Cas. Abr. 407 ; Gilb. (6) 3 Hagg. 777. Eq. Rep. 130; 1 P. Wms. 343 ; © And

Meredith Short v. Smith, 4 East, 419; Ex Maunsell, Milw. Ir. Eccl. Rep. parte Earl of Ilchester, 7 Ves. 132. 366 ; Kirke v. Kirke, 4 Russ.




Chap. IX.

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of a parol revocation; it was said that if the testator's words were, “I will revoke my will made at P,” that was no present revocation, for it referred to a future act. But if the testator's words were, “It shall not stand," this took effect at once.(a) In Thomas v. Evans(b) a testator devised his personal estate to A and his real estate to B, and after A's death, and the testator having acquired other real property, some by devise and some by purchase, he made a second will, disposing of his after-acquired estate to C, and then added, “ As to the rest of my real and personal estate I intend to dispose of it by a codicil hereafter to be made to this my will.” It was held that there was no revocation. Lord Ellenborough said, “The cases referred to before the Statuto of Frauds, wherein parol declarations of an intention to revoke in future were holden not to amount to a present revocation, are all applicable .... Here the devisor has concluded by declaring his intention to dispose of the rest of his real and personal estate by a codicil thereafter to be made to that his will; the plain sense of which is, that instead of having two distinct instruments, he meant to dispose of his personal property, the bequest of which had lapsed, and also of his real property, which he had acquired subsequent to his first will, and by means of a codicil to connect the two instruments and make it all one will. But even if this had imported an intention to revoke by making a different disposition in future, it would not, according to the authorities, have amounted to a revocation unless we knew what the difference was.”(c)

(a) Burton v. Gowell, Cro. Eliz, 306; and see Cleobury v. Beckett, 14 Beav. 588.

(6) 2 East, 488.

(c) And see Griffin v. Grifin, 4 Ves. 197 n.

But although a will cannot be revoked by parol alone,

CHAP, IX. it is not necessary, under the Statute of Frauds, that the Revocatory

instrument writing expressing the intention to revoke should be need not be

signed under signed by the testator, if it can be proved that the writing Sintute of

Frauds. was by his desire. Thus, where the deceased, having made a will, which she deposited with one of the executors, caused a letter to be written desiring that the will might be destroyed, but 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, it was held that there was a revocation.(a) The strong presumption of law is always adverse to an Presumption is

against ununfinished instrument materially altering and controlling finished instrua will deliberately planned, regularly executed, recently approved, and supported by previous and uniform dispositive acts; and this presumption is stronger in proportion to the less perfect state of, and the small progress made in, such instrument. To establish such a paper there must be the fullest proof of capacity, volition, final intention, and interruption by the act of God. (6)

The revocatory acts prescribed by the Statute of Revocatory Frauds and the Wills Act must be done by the testator, done by or in

the presence of or by some person in his presence and by his direction. the testator. Accordingly probate has been decreed of a draft copy of a codicil which had been burnt by the testatrix's order with intent to revoke, but not in her presence. (c)


acts must be

(a) Walcott v. Ochterlony, 1 Curt. 580 ; and see Re Ravenscroft, 18 L. J. Ch. 501.

(6) Blewitt v. Blewitt, 4 Hagg. 410; and see Gillow v. Bourne,

ib. 192.

(c) Re Dadds, Deane, 290; and see Rooke v, Langdon, 2 L. T. 495.

Chap. IX.

And with intention of revoking.

And such revocatory acts must be done with the intention of revoking. Thus, where a testator duly executed a will in August, 1857, and in July, 1859, he executed another, purporting to revoke the will of 1857; in a suit respecting the validity of the will of 1859 the Court of Probate pronounced against the validity of such will, and the draft of the will of 1857 was then propounded, and it was proved that after the execution of the will of 1859 the testator had called for the will of 1857, and after appearing to read it had torn it up, saying, “ It is of no use now I have another;" it was held that there was no proof of the destruction of the will of 1857 with intention to revoke so as to satisfy the Wills Act, and probate of the draft was decreed.(a)

If it is once proved that a will has been duly executed, it is entitled to probate, unless it is also shown that it has been revoked by one of the several modes pointed out by the statute; and the onus of proving that it has been so revoked lies upon the party who sets up the revocation.(b)

A testator cannot, either under the Statute of Frauds or the Wills Act, authorize a post mortem destruction of his will; the will must, if revoked by destruction, be destroyed in his presence and by his direction;(c) if altered

Onus of proof.

Testator cannot authorize post mortem destruction of will.

(a) Clarkson v. Clarkson, 2 Sw. & Tr. 497. Where a wife destroyed her husband's will without his consent, the Court, on admitting a copy of the will to probate, ordered the costs to be paid by the wife. Horne v, Horne, Prob. Ct. Dec. 1859, cited Hayes & Jarm.

Wills, 8th ed. 35.

(6) Harris v. Berrall, 1 Sw. & Tr. 153 ; Sprigge v. Sprigge, L. R. 1 P. & D. 608 ; Benson V. Benson, L. R. 2 P. & D. 172.

(c) Stockwell v. Ritherdon, 6 No. Cas. 414; 1 Rob. 661 ; 12 Jur. 779.

or destroyed after his death, evidence is admissible to CHAP. IX. prove what the will was as it originally stood. (a) Under the Statute of Frauds, a will may be revoked Revocation by

instructions by mere instructions for a new will.(6) But when the for a new will

under Statute will has been drawn according to the instructions, and of Frauds. has been executed, then the instructions must primâ facie be considered as revoked, (c) unless it appears that it was intended that they were to be incorporated in the will, when both documents may be admitted to probate.(d) A distinction is drawn between “unfinished” and Distinction

between “ununexecuted”


for it
that there is no in- finished” and

unexecuted" stance where two papers—both complete as to the dis

papers. position of personalty and where the only defect of the second paper is a want of due execution have been admitted to probate as together containing the last will of the testator. Such a case would be contrary to the principle upon which two papers are incorporated for the purpose of probate, namely, for the purpose of supplying imperfections in the disposition of personalty by the

Where the subsequent paper is merely codicillary, then no difficulty arises.(e) Under the Statute of Frauds, where there is a regular Subsequent

unfinished will, and another paper begun as a new will, which the

paper, operation of, under

Statute of (a) Re North, 6 Jur. 564; Re P. C. C. 355,

Dadds, Deane, 290 ; Haines v. (e) Masterman v. Maberley, 2
Haines, 1 Vern. 441.

Hagg. 236, per Sir J. Nicholl ; (b) Sellars v. Garnett, cited Henfrey v.

Henfrey v. Henfrey, 4 Moo, P. in Helyar v. Helyar, 1. Cas. C. C. 35; see also Ingram v. temp. Lee, 509; Moore v. Moore, Strong, 2 Phillim. 312; Gillow 1 Phillim. 430.

v. Bourne, 4 Hagg. 198; Walsh (c) Wood v. Goodlake, 2 Curt. v. Gladstone, 1 Phillim. 294 ; 82, 129.

Kidd v. North, 2 Phillim. 91 ; (d) Hitchings v. Wood, 2 Moo.

Brine v. Ferrier, 7 Sim. 549.

latter paper.

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