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CHAP. IX.

Revoked will now only revived by

codicil.

Court; and, in fact, a case can hardly by possibility be so destitute of all circumstances as to require a decision upon mere legal presumption and nothing else."(a)

In a subsequent case, however, the same learned judge somewhat modified the doctrine, saying "The legal presumption is neither adverse to, nor in favour of, the revival of a former uncancelled, upon the cancellation of a latter revocatory, will. Having furnished this principle, the law withdraws altogether, and leaves the question as one of intention purely, and open to a decision either way solely according to facts and circumstances." (b)

The law on this point is now altered by the Wills Act, the twenty-second section of which provides that no will or codicil or any part thereof which shall be in any manner revoked, shall be revived otherwise than by a codicil executed in manner thereinbefore required, and showing an intention to revive the same; and that when any will, or codicil, which shall be partly revoked, and afterwards wholly revoked, shall be revived, such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof, unless an intention to the contrary shall be shown.

It is immaterial now whether the second will contains a clause revoking all former wills or not, or whether it is

Immaterial
whether
second will
contained revo-

catory clause. merely inconsistent with the first will. (c)

Parol evidence of contents of second will admissible;

Where the second will has been lost parol evidence of

(a) See also Helyar v. Helyar, 1 Cas. temp. Lee, 472; Wright v. Netherwood, 2 Phillim. 276; note to Taylor v. Diplock ; Hooton v. Head, 3 Phillim. 32; Kirkcudbright v. Kirkcudbright, 1 Hagg. 326.

(b) Usticke v. Bawden, 2 Add. 125; and see James v. Cohen, 3 Curt. 770; 8 Jur. 249.

(c) Brown v. Brown, 8 E. & B. 876; Hale v. Tokelove, 14 Jur. 817; Boulcott v. Boulcott, 2 Drew, 25.

its contents may be given. (a) But such evidence must Chap. IX. be strong and conclusive as to the contents ; it is not enough to prove that the will contained the words, "this is

my last will and testament," as those words alone do not make it a revocatory instrument or necessarily import that it contained a different disposition of the property, and in order to make it operate as a revocation of a former will it must be proved that its contents were different,(6) and parol evidence is not admissible to show but not of

intention to an intention on the part of the testator to revive the first revive. will by destroying the second. (c) The intention to revive required by the Act can only be shown in the case of a codicil by the contents of the codicil itself, the mere physical annexation by a piece of tape, for instance, of a duly-executed codicil to a revoked will is not sufficient.(d)

Although parol evidence is admissible to explain a latent ambiguity in a will or codicil, it is not admissible where a codicil expressly revives a will of a certain date, to prove that it was intended to revive a will of another date.(e)

In Bell v. Fothergill, (f) on the death of the testator in 1868, a will dated in 1845 was found, the signature

(a) Brown v. Brown, 8 E. & Rees v. Rees, L. R. 3 P. & D. 84. B. 876 ; Re Gardner, 1 Sw. & (e) Lord Walpole v. Earl of Tr. 109 ; 27 L. J. P. & M. 55. Cholmondeley, 7 T. R. 138; Re

(6) Cutto v. Gilbert, 9 Moo. Chapman, 1 Rob. 1; 8 Jur. P. C. C. 131.

908. (©) Major v. Iles, 7 Jur. 219; In Quincey v. Quincey, 5 No. S. C. nom. Major v. Williams, Cas, 154; S. C. nom. Re Brown, 3 Curt. 432; Stride v. Sandford, 11 Jur. 111; such parol evi.

; 17 Jur. 263; and see as to the dence was admitted, but the wording of this section, 1 Jarm. foregoing cases do not appear on Wills, 3rd ed. 135.

to have been cited, nor was (d) Marsh v. Marsh, 1 Sw. & there any opposition. Tr. 528; 6 Jur. (N. S.) 380 ; (f) L. R. 2 P. & D. 148.

CHAP. IX.

to which had been cut out, but gummed on to its former place. The will had been in the custody of the testator up to the time of his death. Declarations of the testator made subsequent to the date of the will were proved, of an intention to benefit his wife by will. No other will was forthcoming. It was held that the presumption that the deceased cut out his signature animo revocandi was not rebutted, and that the gumming on the signature in

its original place did not revive the will. Duplicate wills Where a testator executes a will in duplicate, and - presumption of revocation intrusts one copy to the care of another person and reby cancellation of destruction tains the other himself, and cancels or destroys the copy of one.

in his possession, the primâ facie presumption is that he intended to revoke the duplicate as well, although it remains whole and undefaced : a presumption which of course may be rebutted by evidence.(a) So also the presumption will be the same, though not so strong if both wills are in the testator's possession.(b)

In Pemberton v. Pemberton,(c) two wills, originally duplicates, were found at the death of the testator; one was altered and cancelled, the other was in its original state; and it was held that the will was not revoked. Lord Eskine, L. C., said, “If a testator cancels that part which is with him, the legal presumption is, that the duplicate in the possession of another is not to prevail.

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(a) Sir Edward Seymour's 2 Hagg. 266. Case, 1 P. Wms. 346 ; 2 Vern. (6) Re Hains, 5 No. Cas. 621. 742 ; Comyn. Rep. 553; Onions As to what the presumption is v. Tyrer, 1 P. Wms. 346; Bur. when the testator retains his tenshaw v. Gilbert, Cowp. 49; own copy undefaced, and des. Boughey v. Moreton, cited 3 troys the copy in the possesHagg. 191 n.; 2 Cas. temp. sion of a third person, Lee, 532; Rickards v. Mumford, Payne v. Trappes, 1 Rob. 583. 2 Phillim. 23; Colvin v. Fraser, (c) 13 Ves. 310.

see

Cuap. IX.

My opinion goes farther : that if the testator himself has possession of both, the presumption holds, though weaker; and further, that even if, having both in his possession, he alters one, and then destroys that which he had altered, there is also the presumption, but still weaker. But all these cases, according to Burtenshaw v. Gilbert, (a) are matters of evidence.

In Roberts v. Round, (b) the testatrix, without destroying the seal or signature of one will, partially mutilated it, but retained the other duplicate in her possession and carefully preserved it; on evidence of uninterrupted affection for the parties interested, it was held that the will was not revoked. Where there are two duplicate wills, and one is altered Effect of alter

ations in one or obliterated in any part, the two documents together of duplicate

wills. form one will in two parts, and the alteration or obliteration in one part is an alteration or obliteration of the corresponding portion of the other part.(c) If a testator executes a codicil revoking a part of his

a will and also obliterates that part of the will, and afterwards cancels the codicil, the effect will be that the will is revived although the obliteration in the will is left standing. Thus, in Utterson v. Utterson, (d) the testator introduced an interlineation into his will, excepting one of his sons from sharing in the residue of his property, and bequeathing him one shilling, and he also executed a codicil expressing his disapprobation of the conduct of his son, and declaring that he should only have one shilling. Afterwards the testator became reconciled to his son, and cancelled the codicil by drawing a pen across it; but forgot to strike out the interlineation in his will. (a) Cowp. 49.

(c) Doe v. Strickland, 8 C. B. 724. () 3 Hagg. 548.

(d) 3 V. & B. 122.

Chap. IX.

In the Ecclesiastical Court it was held that the oblitera-
tion of the codicil had the effect of cancelling the excep-
tion interlined in the will. There was therefore no
question as to the personal property. As to the freehold
estate, the will as altered by the interlineation not being
re-published could have no effect for want of attestation.
The only question was with regard to copyhold estate,
and Sir W. Grant held that the cancellation of the codi-
cil set up the will, saying: "Even independently of the
parol evidence of reconciliation, it seems to me that the
act of obliteration speaks as clearly as words could have
done a change of intention as to the exclusion and not
merely as to the mode of effecting it. It is the same as
if he said: “This codicil no longer speaks my sentiments:
I am no longer dissatisfied with my son; and no longer
mean to make
any distinction between him and

my

other children.'»

If a testator signs a draft, and afterwards executes a will made from it, if the will is revoked the draft is revoked also.(a)

A codicil is primâ facie dependent on the will, and Whether when will destroyed according to the earlier cases, the destruction of the revoked. latter is an implied revocation of the former. Therefore

it has been held that where a will and codicil have been in existence, and the will is afterwards revoked, it must be shown by the party applying for probate of the codicil alone, that it was intended by the deceased that it should operate separately from the will; otherwise it will be presumed that as the will is destroyed the codicil is gone also, (b) and the presumption is not sufficiently

codicil

(a) Moore v. De la Torre, 1 Phillim. 400.

(6) Grimwood v. Cozens, 5 Jur.

(N. S.) 598, per Cresswell, J.; and see Usticke v. Bauden, 2 Add. 116; Re Greig, L. R. 1 P. & D.72.

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