CHAP. IX. Revocation by cancelling, &c. under Wills Act. "Tearing" required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of, or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will." By the 20th section of the Wills Act (a) a will may be revoked "by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.” Under this section it has been decided that the word "tearing" includes "cutting." Cutting is a mode of destroying as effectual as tearing, and if tearing a will is a sufficient destruction of it, the same effect must be attributed to cutting. If not, a will torn into two pieces would be revoked, but if cut into twenty with a knife there would be no revocation.(b) Where a part only of the will is cut out, and the testator's signature is left, there will be a revocation pro tanto. (c) But if it appears that the cutting was done animo revocandi, (d) or if the testator's signature has, (e) or the signatures of the wit (a) 1 Vict. c. 26. (b) Hobbs v. Knight, 1 Curt. 768, 769, per Sir Herbert Jenner; and see Re Cooke, 5 No. Cas. 390; Clarke v. Scripps, 2 Rob. 563; 16 Jur. 783. (c) Re Lambert, 1 No. Cas. 131; Re Cooke, 5 No. Cas. 391; Clarke v. Scripps, 2 Rob. 563; 16 Jur. 783. (d) Williams v. Jones, 7 No. Cas. 106. (e) Hobbs v. Knight, 1 Curt. 768; Re Gullan, 1 Sw. & Tr. 23; 4 Jur. (N. S.) 196: 27 L J. P. & M. 15; Re Lewis, 1 Sw. & Tr. 31; 27 L. J. P. & M. 31; Re Simpson, 5 Jur. (N. S.) 1366. nesses have been destroyed animo revocandi, the whole will is thereby revoked. (a) Where, however, after the death of a testator his will was found with his original signature erased, but another signature by him appeared a short distance beneath, it was held on the facts and circumstances deposed to, that the original signature was not erased animo revocandi as required by the Wills Act, and that in the probate the original signature must be restored and the second signature omitted. (b) The signature at the end of the will is the only one that satisfies the Wills Act, and therefore where a will consists of several sheets, and each of them is signed, the destruction of the last sheet only, will revoke the whole will. (c) But if a testator in the witnessing clause at the end of his will says that he has set his hand to the preceding pages, he makes the signatures on those pages a part of his will, and if having so recited he afterwards, animo revocandi, tears off the signatures from the preceding pages, it is a good revocation of the whole will.(d) And where a testatrix signed her name at the end of the first five sheets of her will, and at the foot of her will on the sixth sheet, and subsequently cut off her signatures at the end of each of the first five sheets, and drew her pen through her signature at the foot of the will on the sixth sheet, adding that she had cancelled the will, and giving (a) Birkhead v. Bowdoin, 2 No. Cas. 66; Hobbs v. Knight, 1 Curt. 780; Abrahams v. Joseph, 5 Jur. (N. S.) 179; Re James, 7 Jur. (N. S.) 52; Evans v. Dallow, 31 L. J. P. & M. 128. (b) Re King, 2 Rob. 403; and see Re Coleman, 2 Sw. & Tr. 314. CC (c) Re Gullan, 1 Sw. & Tr. 23; 4 Jur. (N. S.) 196; 27 L. J. P. & M. 15; Gullan v. Grove, 26 Beav. 64; Trott v. Trott, 6 Jur. (N. S.) 760; 29 L. J. P. & M. 156. (d) Williams v. Tyley, Johns, 530. CHAP. IX. Destruction of last signature only necessary to revocation. CHAP. IX. When destruction of seal revocation. Evidence to rebut presumption of revocation by tearing, &c. the date; it was held that as the testatrix had cut off a portion of her will which, though not in fact, was treated by her as a material part of it, she had done an act of revocation sufficient to satisfy the statute. (a) Although a seal is not necessary to the due execution of a will, yet if the testator by affixing a seal makes the will a sealed instrument, and afterwards tears off the scal animo revocandi, the will is revoked. This was decided in Price v. Powell, (b) where Pollock, C.B., said: "As this will professed to be executed under seal, and was published and attested as a sealed instrument, when the seal was torn off it ceased to be the instrument which the testator professed to execute, and to publish to the attesting witnesses, and through them to the world. (c) In order to rebut the presumption of revocation by tearing, evidence is admissible to show that it was occasioned by wear, and was not done by the testator animo revocandi, (d) and evidence generally is admissible to show that an act which prima facie would appear to have been done with the intention of revoking the will, was not in fact done with such intention.(e) In Clark v. Cripps, (f) the will of the testator remained in his custody till his death, when it was found in a mutilated state, torn and cut, but the signatures of the testator and the attesting witnesses remained at the end of the will. It was held, in the absence of extrinsic evidence, from the peculiar manner in which the mutilations were effected, (a) Re Harris, 3 Sw. & Tr. 485. (b) 3 H. & N. 341. (c) And see Lambell v. Lambell, 3 Hagg. 568. (d) Bigge v. Bigge, 3 No. Cas. 601; and see 1 Eq. Cas. (e) Tozer v. Tozer, 2 No. Cas. 11; Re Hannam, 14 Jur. 558. (ƒ) 2 Rob. 563. that there was no intention to revoke the whole will, but that the papers as altered were intended by the testator for a draft of a new will, and, in the event of his not making a new will, to operate as his will. In A will may be only partially revoked by tearing. Christmas v. Whinyates (a) the testatrix executed her will on two sheets of paper, and a codicil on the second side of the second sheet. After her death these two sheets were found, but part of the top of the second sheet had been cut off, including the testatrix's signature on the upper part of the second side, the names of the attesting witnesses being untouched. It was held that the will and codicil when executed formed one testament, which had been mutilated by cutting off a portion; but that, from the manner in which it was cut, and the preservation of the rest of the will and codicil, the testatrix only intended to revoke so much of the will as was cut off. And in Re Woodward (b) it was held that the mere cutting or tearing off the first few lines of a will without other circumstances could not raise the inference that the deceased intended to revoke the whole will. CHAP. IX. Partial revocation by tearing. Cancelling a will by striking a pen through it is not Cancelling a a revocation under the Wills Act. (c) The words " can will not revocation under celling " and "obliterating," used in the Statute of Wills Act. Frauds, were advisedly omitted by the Legislature, and when they speak of "burning" a will and "tearing" a will, and then of "otherwise destroying " a will, they must be understood as intending some mode of destruction ejusdem generis, not an act which is not a destroying (a) 3 Sw. & Tr. 81. (b) L. R. 2 P. & D. 206; see also Dancer v. Crabb, L. R. 3 (c) S. 20. CHAP. IX. When parol evidence admissible to show what obliterated words were. in the primary meaning of the word, although it may have the sense metaphorically, as being a destruction of the contents of the will. (a) Thus, where the testator left a duly executed will consisting of three sheets of paper, each of which was signed by him, and it was found that he had written over each of his signatures the words "Cancelled W. B.," and that he had added a memorandum at the end in which were the words, "I hereby revoke this will, and it is altogether cancelled,” and “I intend to make another will whereupon I will destroy this," it was held that the will had not been revoked.(b) So where the testatrix struck a pen through the signature to her will animo revocandi, it was held that the will was not revoked. (c) If a word is utterly illegible and another is substituted both must be omitted, (d) unless it can be proved by the evidence of experts how the will originally stood, (e) but if the words or effect before the alteration cannot be made apparent on the face of the instrument, extrinsic evidence, such as a draft copy of, or instructions for, the will, is not admissible to show what the obliterated passages were. It was the intention of the Legislature that if a testator shall take such pains to obliterate certain (a) Stephens v. Taprell, 2 Curt, 465, per Sir H. Jenner; and see Hobbs v. Knight, 1 Curt. 779; Greville v. Tylee, 7 Moo. P. C. 320; Shaw v. Thorne, 4 No. Cas. 649; Re De Bode, 5 No. Cas. 189. (b) Re Brewster, 29 L J. P. & M. 69; 6 Jur (N. S.) 56; and see Re Farey 15 Jur. 1114; Re Dyer, 5 Jur. 1016; Re Beavan, 2 Curt. 369. (c) Re Rose, 4 No. Cas. 101; and see Re De Bode, 5 No. Cas. 189. (d) Stephens v. Taprell, 2 Curt. 467. (e) Cooper v. Bockett, 4 Moo. P. C. C. 419; Re Oppenheim, 17 Jur. 306; Re Ibbetson, 2 Curt. 337; Lushington v. Onslow, 6 No. Cas. 187; 12 Jur. 465. |