CHAP. IX. Attempt to destroy alone not always sufficient. together and threw it on the fire, but it fell off. However it must soon have been burnt had not M W taken it up 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 at, to which she made little or no answer. He at 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 she had destroyed it (though in fact it never was destroyed), and she believed he imagined it was so. She asked him when the will was burnt to whom his estate would go? He answered to his sister and her children. He afterwards told one JE that he had destroyed his will, and should make no other till he had seen his brother, and desired J E would tell him so, and that he wanted to see him. He afterwards wrote to his brother in these terms: "Dear Brother, I have destroyed my will which I made, for upon serious consideration I was not easy in my mind about that will," and afterwards desired him "to come down, for if I die intestate it will cause uneasiness." He, however, died without making any other will. The jury, with whom the judge concurred, thought this a sufficient revocation of the will, and the Court of Common Pleas was of the same opinion, saying that the case fell within two of the specific acts described by the statute; that it was both a burning and a tearing, 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. It must appear on the instrument itself that some act has been done with the intention of revoking it. If nothing appears on the will to show that some attempt has been made to comply with the provisions of the statute it will not be revoked. Thus in Doe v. Harris (a) the testator threw his will in an envelope on the fire, from which it was immediately snatched by his niece who lived with him, and she promised to destroy it herself. The next day the testator told his servant that the niece had thrown the will upon the fire. The servant doubting this, he said, "she threw something with writing on the fire, but I did not have it in my hand to look at it." The servant answered, "I do not think she has thrown it," and the testator said, "I do not care; I will go to Lantwit if I am alive and well, and make another will." The will was subsequently produced, and bore no marks of burning. It was held that it had not been revoked. Lord Denman, C.J., said: "It is impossible to say that singeing a cover is burning a will within the meaning of the statute," and Patteson, J., said: "To hold that it was so would be saying that a strong intention to burn was a burning. There must be, at all events, a partial burning of the instrument itself; I do not say that a quantity of words must be burnt, but there must be a burning of the paper on which the will is." It was afterwards held that the will in question was revoked as far as regarded copyholds to which the Statute of Frauds does not extend. (b) CHAP. IX. act of revoking. Although the testator has done an act which appears Revocation of on the instrument, and which would have the effect of revocation if such were his intention, yet it may be proved that the "intention of revoking was itself revoked before the act was completed." (c) Thus, where a (a) 6 A. & E. 209; 2 Nev. & P. 615. (b) Doe v. Harris, 8 A. & E. 1. (c) Doe v. Harris, 6 A. & E. 215, per Lord Denman, CHAP. IX. Presumption of revocation : will traced to possession of testator and not forthcoming; testator, being angry with one of the devisees named in his will, began to tear it, with the intention of destroying it, and having torn it into four pieces was prevented from proceeding further, and, having put by the pieces, expressed his satisfaction that no material part of the writing had been injured and that it was no worse, it was held that the will was not revoked. (a) Again, where the testator, having expressed his intention to make a new will and leave all his property to the principal legatee in the existing will, sent for the will and tore it almost in two, but was stopped by the exclamations of persons in the room as to the danger of destroying the existing will before making another, it was held that the will was not revoked. (b) But where at the death of the deceased a paper writing inclosed in a half-sheet of foolscap paper, and indorsed in the handwriting of the deceased, "Will of Major J. S.,” was found with other papers in a locked drawer, and the paper had been cut in two pieces immediately above the signature of the deceased and the attesting witnesses, but both pieces were preserved, it was argued on the authority of Elms v. Elms (c) that the intention to revoke was inchoate and not complete, and that this was shown by the testator having preserved the paper in his desk, but Cresswell, J.O., refused to grant probate. (d) If a will is traced to the possession of the deceased (a) Doe v. Perkes, 3 B. & Ald. 489; see the summing up of Holroyd, J. reported Gow. 186; and see Re Colberg, 1 No. Cas. 90; 2 Curt. 832. (b) Elms v. Elms, 1 Sw. & Tr. 155; 4 Jur. (N. S.) 341; 27 L. J. P. & M. 96; see also Re Smith, 1 No. Cas. 315; (d) Re Simpson, 5 Jur. (N. S.) 1366. and is last seen in his possession, the presumption of law is, where the will is not forthcoming at his death, that he destroyed it animo revocandi, and that presumption must prevail, unless there is sufficient evidence to repel it, and to raise a higher degree of probability to the contrary. (a) СНАР. ІХ. mutilated. And the presumption is the same when the will is or found found in a mutilated condition in a place to which the testator alone had access. (b) Where the will was found locked up in the deceased's trunk, of which she kept the key, and it did not appear that anybody had access to it but herself, and lines were drawn across the signature, it was held that the will was cancelled. (c) But if the will has been traced out of the testator's possession the onus is on the party asserting that it has been revoked to prove that it was brought back into the testator's possession, or that it was revoked by his orders. (d) Where the testatrix, having duly executed her will, became insane, and shortly before her death it was discovered that the will had been mutilated by her, but it was proved to have been in her custody for a short time (a) Helyar v. Helyar, 1 Cas. temp. Lee, 512; Rickards v. Mumford, 2 Phillim. 23; Loxley V. Jackson, 3 Phillim, 126; Lillie v. Lillie, 3 Hagg. 184; Wargent v. Hollings, 4 ib. 245; Taggart v. Squire, 1 Curt. 289; Welch v. Phillips, 1 Moo. P. C. C. 299; James v. Cohen, 3 Curt. 770; Brown v. Brown, 8 E. & B. 876; Re Shaw, 1 Sw. & Tr. 62; L. R. 3 P. & D. 105; Sugden v. (b) Hare v. Nasmyth, cit. 3 (c) Slade v. Friend, cit. 2 Cas. temp. Lee, 84. (d) Colvin v. Fraser, 2 Hagg. 327; Wynn v. Heveningham, 1 Coll. 638. Will traced out of testator's possession. subsequent as well as prior to her insanity, it was held that there being satisfactory evidence of the due execution of the will, the onus of showing that it had been mutilated by the testatrix when of sound mind was upon the party alleging its revocation. (a) It is not necessary that the evidence to rebut the presumption of law should be such as to amount to positive certainty, but only such as reasonably produces moral conviction, (b) such as declaration of unchanged affection and intention, (c) the fact of the testator having spoken up to the time of death of a will being in existence, (d) the suspicious conduct of a person alleging revocation, (e) the death of the testator while on active service, and the destruction of his papers by the enemy. (ƒ) In Re Pechell, (g) the deceased, an officer in her Majesty's service, executed a will and codicil previous to leaving England with his regiment, and the original will and codicil were deposited with his solicitor in England, but he took with him copies of these documents, which were found at his death inclosed in a sealed envelope in his desk. He never returned to England. The original will and codicil could not be found amongst the papers of the solicitor, who had died in the lifetime of the deceased, but there was evidence from which to infer (a) Harris v. Berrall, 1 Sw. & Tr. 153; and see Sprigge v. Sprigge, L. R. 1 P. & D. 608. (b) Davis v. Davis, 2 Add. 226, per Sir J. Nicholl; Wargent v. Hollings, 4 Hagg. 249; Eckersley v. Platt, L. R. 1 P. & D. 281. (c) Patten v. Poulton, 1 Sw. & Tr. 55; 27 L. J. P. & M. 41; 4 Jur. (N. S.) 341. (d) Saunders v. Saunders, 6 No. Cas. 518. (e) Battyll v. Lyles, 4 Jur. (N. S.) 718. (f) Re Ripley, 1 Sw. & Tr. 68; 4 Jur. (N. S.) 342; Re Gardner, 1 Sw. & Tr. 109; 27 L. J. P. & M. 55. (g) 6 Jur. (N. S.) 406. |