A Treatise on the Statute of Frauds

And where testamentary documents are inconsistent probate may be granted of such parts as are consistent, the inconsistent parts of the earlier instruments being revoked by the latter. (a)

Where a testator, having erased a clause in his will after the execution, asked a friend to make a fresh copy of the will, omitting the erased clause, and the copy was made, but the person who made it, by mistake omitted several other clauses, and the copy was duly executed, but the omissions were not discovered until after the testator's death, both wills having remained in his custody up to that time, probate was granted of both wills, they not being inconsistent, and the latter containing no express clause of revocation.(b)

CHAP. IX.

press clause of

But this rule will not apply where the latter instru- Effect of exment contains an express clause of revocation or clearly revocation. shows that the testator intended to revoke the prior wills. (c) Where a testator by will devised his estate to trustees for the term of two hundred years, for payment of all his debts, and afterwards demised the same to other trustees for three hundred years in trust to pay some particular debts by specialty mentioned in the deed, and all incumbrances that affected his property, it was held that the deed was intended only as a collateral security for payment of the debts therein mentioned, and such others as were a charge on the estate, and that the

Geaves v. Price, ib. 71; Re
Nickalls, 4 Sw. & Tr. 40; Re
Petchell, L. R. 3 P. & D. 153.

(a) Stoddart v. Grant, 1 Macq. H. L. C. 163; Re Budd, 3 Sw. & Tr. 196; Lemage v. Goodban, L. R. 1 P. & D. 57; Re De la Saussaye, L. R. 3 P. & D. 42.

(b) Birks v. Birks, 4 Sw. & Tr. 23; and see Lemage v. Goodban, L. R. 1 P. & D. 57; Re Donaldson, L. R. 3 P. & D. 45.

CHAP. IX.

Appointment of executors.

Prior independent disposition, when supported.

testator did not depart from his former intention of paying all his debts, but only intended to give preference to those comprised in the three hundred years term. (a)

The mere nomination of executors in a second will does not necessarily impart an intention to revoke previous testamentary documents; (b) and where the second will nominates additional or different executors, probate will be granted to all the executors if the wills are not inconsistent. (c)

Where a first will appoints executors, and afterwards a second will is made by which the testator bequeaths all his property to a particular person, but does not appoint an executor, the second will operates as a revocation of the first; for all the property being given to such particular person there is no necessity to appoint executors.(d)

A paper of an earlier date than a will may be admitted to probate as a codicil, although the will contains an

(a) Acton v. Weld, 2 Eq. Cas. Abr. 777.

In the first volume of Mr. Jarman's work on Wills, 3rd ed. 161, it is said that "the inclination to such a construction as would preserve, either wholly or in part, the contents of the prior document, however, exists only, when the subsequent document is inadequate to the disposition of the entire property, so that the consequence of rejecting the prior document would be to produce partial intestacy." And in the note it is said that

in Plenty v. West, 1 Rob. 264; 4 No. Cas. 103; 9 Jur. 458, Sir H. J. Fust denied the ap plicability of this rule to per sonalty; but see Cookson v. Hancock, 1 Kee, 817; 2 My. & Cr. 606.

(b) Stoddart v. Grant, 1 Macq. H. L. C. 172, per Lord Truro; Richards v. Queen's Proctor, 18 Jur. 540.

(d) Henfrey v. Henfrey, 2 Curt. 468; affd. 4 Moo. 49; and see Re Montagu, 7 No. Cas. 292.

express revocatory clause, if it can be proved that the paper was intended by the testator to operate independently of his will. (a) Thus, cheques written by a testator in 1833, but not intended to have effect until after his death, were pronounced for as a part of the testamentary disposition of the deceased, he having in 1834 formally executed a will disposing of the whole of his property, and containing a full clause of revocation.(b)

In order that a will may be revoked in the manner mentioned in the second clause of the sixth section of the Statute of Frauds, there must be some unequivocal act of cancellation or obliteration by the testator himself, or by some person in his presence, and by his direction, though, as will be seen hereafter, it is not necessary that there should be complete destruction of the instrument. (c)

If a testator tear off or efface 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. (d)

All questions of revocation are questions to some degree of intention, for every fact of revocation is said to be equivocal.(e) The act of cancellation or destruction is prima facie done animo cancellandi, and a presumptive intention to revoke, till the contrary is shown. The

(a) Denny v. Barton, 2 Phillim, 575.

(b) Gladstone v. Tempest, 2 Curt. 650.

(d) Scruby v. Fordham, 1 Add. 78, per Sir J. Nicholl;

and see Davies v. Davies, 1 Cas.
temp. Lee, 444; Lambell v.
Lambell, 3 Hagg. 568, where
the seal alone was torn off;
see also Bell v. Fothergill, L.
R. 2 P. & D. 148.

(e) Smith v. Cunningham, 1
Add. 455, per Sir J. Nicholl.

CHAP. IX.

Destruction by third person.

reason is, that the act of voluntarily destroying the instrument implies the intention of revoking its whole effect. (a) Nevertheless a will may be cancelled without being revoked. The cancelling itself is an equivocal act, and in order to operate as a revocation must be done animo revocandi.(b)

As, if a man were to throw ink upon his will instead of the sand, though it might be a complete defacing of the instrument, it would be no cancelling.(c) Where a testator, having duly executed his will on a subsequent occasion, in the presence of his executor, erased his signature with the avowed intention of writing it in a better style, and did thereupon write it again in the presence of the executor, but not of the attesting witnesses; it was held that the instrument was entitled to probate, the original signature being considered as restored. (d) So if a testator defaces or attempts to destroy his will while in a state of unsound mind, (e) or if it has been destroyed by mistake, (f) it will not be revoked.

Nor will the destruction of the instrument in the testator's lifetime by a third person without his direction or consent revoke it.(g) Where, after the testator's

(a) Rickards v. Mumford, 2 Phillim. 24, per Sir J. Nicholl; and see Shaw v. Thorne, 4 No. Cas. 649; Re Lewis, 1 Sw. & Tr. 31; 27 L. J. P. & M. 31.

(b) Lord John Thynne v. Stanhope, 1 Add. 53.

461.

(e) Scruby v. Fordham, 1

Add. 74; Re Brand, 3 Hagg. 754; Borlase v. Borlase, 4 No. Cas. 139; Re Shaw, 1 Curt. 905; Re Downer, 18 Jur. 66; Harris v. Berrall, 1 Sw. & Tr. 153; Sprigge v. Sprigge, L. R. 1 P. & D. 608; Brunt v. Brunt, L. R. 3 P. & D. 37.

(f) Re Thornton, 2 Curt 913.

(g) 1 Jarm. on Wills, 3rd ed.

122.

death, the will was destroyed by a friend of the heir-atlaw, the will was supported. (a)

The onus of proving that the cancellation was the act of the testator, and with what intention it was done, lies on the parties opposing the proof. Thus, where a holograph instrument purporting to be a codicil was sent anonymously by the post to a legatee named therein, it was, though partially burnt and torn across, admitted to proof; the handwriting being satisfactorily proved, and the confirmatory and adminicular proof being sufficient to satisfy the Court that it was a genuine instrument. (b) Evidence of declarations of an intention not to adhere to a will produced by the opponents of the will is admissible to contradict evidence of adherence produced by the person propounding the will, whatever may be the form of words in which such intention is expressed; and therefore a declaration by a testator that he had burnt his will is admissible, not as evidence of the fact of destruction, but as evidence of intention. (c)

It is not necessary that the will should be completely destroyed by tearing or burning, it is sufficient if the acts are done animo revocandi. In Bibb v. Thomas (d) the testator (who had frequently 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 then being whole, only somewhat creased. 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

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