and might have finished and executed both or either of CHAP. IX. the latter wills if he had thought fit. Testator never

sent or called upon B for the duplicate of the first will in
his hands, though B lived in town. After the death of
the testator, all the testamentary papers or schedules
were found lying in loose and separate papers upon a
table in his closet, not signed or executed, and the
duplicate of the first will was found on the same table,
altered and obliterated, with his name and seal thereto,
whole and uncancelled. Sentence was given for the
duplicate of the first will in B's hands on the ground
that the testator did not intend an intestacy, and by the
alterations and obliterations in his own duplicate of his
first will he appeared only to design a new will, which he
never perfected; the first ought to stand; and the testator
not calling for the duplicate of the first will in B's hands
strengthened the presumption of his intent not absolutely
to destroy his first will till he had perfected another,
which he never did. In Winsor v. Pratt, (a) the testator
having made a will duly executed; several years afterwards
made various interlineations and obliterations therein,
striking out the original date, and substituting the
day of November, 1816. In December, 1816, he caused
a fair copy to be made, in which he afterwards made one
interlineation, but never executed such fair copy. The
Court held that the will to revoke was so coupled with
the intent to make a new will as to depend for its opera-
tion on such second will, or in other words, that the
intention was only to revoke by another disposition, and
consequently remained inchoate and entire until that
disposition was effected.(b)

(a) 5 Moo. 484; 2 Brod. & B. 650.

(b) And see Burtenshaw v. Gilbert, Cowp. 49; Sutton v.

CHAP. IX.

Doctrine of dependent relative revocation does not apply to past transactions.

No new will made.

Partial obliteration and new disposition.

Complete obliteration.

The doctrine of dependent relative revocation applies only where a will is destroyed on the supposition that a subsequently executed will is valid, and does not apply to past transactions; so that a will which has been cancelled on the supposition that an earlier will is thereby revived shall on the failure of that condition be reestablished. (a)

If the testator has not made a new will and commits a revocatory act, the revocation will be complete although he intended to make a new will. (b) In one case an executor having in pencil altered a will (by the direction of the testator, who approved of it when so altered), and then cancelled it, only in order that another might be drawn up, the preparation of which will was prevented by the death of the testator, Sir J. Nicholl granted probate of the cancelled will in its original state on a proxy of consent being given by all the persons interested. (c)

Where a testator obliterates his will, intending a substitution which is ineffectual, the obliteration will not amount to a revocation; as where a testator strikes out the name of a devisee and inserts another name, or strikes out the amount of a legacy and inserts a different amount without the alteration being attested. (d)

The principle of dependent relative revocation applies

Sutton, ib. 812; Perrott v.
Perrott, 14 East, 440; Scott v.
Scott, 1 Sw. & Tr. 258.

(a) Dickinson v. Swatman, 6
Jur. (N. S.) 831; 30 L. J. P. &
M. 84; Re Mitcheson, 32 L. J.
P. & M. 202; but see Powell v.
Powell, L. R. 1 P. & D. 209;
Re Weston, ib. 633.

(b) Williams v. Tyley, 1

Johns, 530.

(c) Re Appelbee, 1 Hagg. 143; and see Re De Bode, 5 No. Cas. 189; Re Eeles, 2 Sw. & Tr. 600. In these cases, however, the parties interested consented.

(d) Short v. Smith, 4 East, 419; Kirke v. Kirke, 4 Russ. 435; Locke v. James, 11 M. & W. 901.

to a case where the testator has so entirely erased the name of a legatee that it is no longer apparent, and has substituted another name for it. The Court will receive evidence to show what the original name was, and will restore it to the probate if satisfied that the testator only revoked the first bequest on the supposition that he had effectually substituted a new legatee. (a)

CHAP. IX.

point of law.

The doctrine of dependent relative revocation applies Mistake in as well to a mistake in point of law as to a mistake in point of fact. "If," said Lord Ellenborough, "a man cancel his will under the mistake in point of fact that he has completed another, when he really has not, as was the case in Hyde v. Hyde, the cancellation is void; and if he cancel it under the mistake in law that a second will (complete as to the execution) operates upon the property contained in the first, when from some clerical rule it really does not, shall this be deemed a valid cancellation?" (b)

A reference in a duly-executed testamentary paper to a document as a will, which is not of a testamentary character, is not alone sufficient to entitle such document to probate as a will. A testamentary paper containing a clause of revocation of any testamentary papers is entitled to probate, although it does not purport to dispose of any property, and there is no evidence of the existence of any previous testamentary papers. (c)

Where a testator having executed a will and codicil signed a second codicil, in which he expressed a desire to cancel his will, and that a document which he described as a will of earlier date and the first and second codicils

(a) Re McCabe, L. R. 3 P. & D. 94.

(b) Perrott v. Perrott, 14

East, 440.

(c) Re Hubbard, L. R. 1 P. & D. 53.

Reference to ment not of character.

another docu

testamentary

DD

CHAP. IX.

Whether when under Statute of Frauds

second will revoked, first is revived?

should together stand as his last will and testament, and the only document executed at the earlier date was a settlement on his marriage, which was not of a testamentary character, it was held that the revocation was absolute and not dependent on the incorporation of the settlement in the papers admitted to probate. (a)

It does not seem to be quite clear whether, under the Statute of Frauds, when there are two wills, and the second of them is revoked, the first becomes operative or not.

At Common Law it has been repeatedly held that the first will becomes operative in such a case apart from any question of intention. Thus in Goodright v. Glazier(b) the former will (being a will of lands) was made in 1757, the second in 1763. The former was never cancelled; the second was cancelled by the testator himself. Both wills were in the testator's custody at the time of his death; the second cancelled, the first uncancelled. It was held that the first will was unrevoked; Lord Mansfield said: "Here the intention of the testator is plain and clear. A will is ambulatory till the death of the testator. If the testator lets it stand till he dies, it is his will; if he does not suffer it to do so, it is not his will. Here he had two; he has cancelled the second, it has no effect, no operation; it is as no will at all, being cancelled before his death. But the former, which was never cancelled, stands as his will." (c)

(a) Re Gentry, L. R. 3 P. & D. 80.

(b) 4 Burr. 2512.

(c) In Roper on Revocation, 24, and in Powell on Devises, 528, a distinction is drawn between cases in which the

second will contains a clause of revocation and those in which it does not, and it is said that in the first of those cases the cancellation of the second will does not revive the former. But this distinction is, it is

In Harwood v. Goodright (a) Lord Mansfield said: "The mere circumstance of making a second will is not in itself a revocation of a former, for the testator may cancel such latter will; and it has been settled that if a man by a second will even revoke a former, yet if he keeps the first will undestroyed, and afterwards destroy the second, the first will is revived." And in the same case his lordship also said: "If a testator makes one will and does not destroy it, though he makes another at any time virtually or expressly revoking the former, if he afterwards destroy the revocation, the first will is still in force and good."(b)

In the Ecclesiastical Courts the rule appears to have been different. In Moore v. Moore (c) it was stated that the question was one of intention, to be collected from all the circumstances of the case, and Abbott, C. J., and Richards, B., both dissented from the rule as laid down in Goodright v. Glazier and Harwood v. Goodright. In Wilson v. Wilson (d) Sir J. Nicholl said: "The presumption has been rather the other way, and against the revival of the former testament; it has been held that it requires some act to show an intention of such revival. As far as my own opinion goes, I cannot help saying that good sense and the reason of the thing seem rather to favour the presumption as taken in these courts. But the truth is, that in all these matters the legal presumption must grow out of something in evidence before the

apprehended, without foundation; see 1 Jarm. on Wills, 3rd ed. 128; 1 Wms. Exors. 7th ed. 178.

(a) 1 Cowp. 91. (b) And

see Rainier V.

Rainier, 1 Jur. 754, where the
second will had been lost, and
the first was held to have been
revived.

(c) 1 Phillim. 375.
(d) 3 Phillim. 554,

CHAP. IX.