Hyde v. Hyde, 1 Ab. Eq. 409. a revocation, it must be shown quo animo it was cancelled; for unless that appears, it will be no revocation. As if a man were to throw ink upon his will, instead of sand; though it might be a complete defacing of the instrument, it would be no cancelling or suppose a man, having two wills of different dates by him, should direct the former to be cancelled, and through mistake the person should cancel the latter; such an act would be no revocation of the will or supposing a man having a will consisting of two parts, throws one unintentionally into the fire, where it is burnt; it would be no revocation of the devises contained in such part. It is the intention, therefore, that must govern in such cases. 26. A person made a will, and intending to make some alterations in it, sent for a scrivener, and gave directions for another will. The scrivener accordingly drew a draft of another will, which the testator signed; and then, thinking he had made a new will, he pulled out the first will, and tore the seals from the first eight sheets of it; which the scrivener seeing, asked him what he was doing; to which he answered, "I am cancelling my first will."-" Pray," says the scrivener, "hold your hand; the other will is not perfected; it will not pass your real estate, for want of being executed pursuant to the statute of frauds."-"I am sorry for that," says he; and immediately desisted from tearing off the seals, and died in a short time after, without having done any thing farther to perfect the second will, or to cancel the first. It was decreed, that the tearing the seals from the first eight sheets, not being done animo cancellandi, was no revocation; and that the seal remaining whole to the last sheet was sufficient; and in strictness it was not necessary that all the sheets should be sealed. 27. In the case of Onions v. Tyrer, as reported in ante, § 21. Prec. in Cha. 459., it is stated that the testator can celled the first will, by tearing off the seal. And as to this point, Mr. Cox has taken from the Register's 1 P. Wms. book what Lord Cowper said; which I shall here 344. n. 1. transcribe." And it is plain the testator did not mean to revoke his former will by cancelling, but by substituting another perfect will in lieu thereof, and not otherwise; and therefore the cancelling thereof was but a circumstance, showing that he thought he had made a good disposition by the second will; and in confidence thereof it was done, with no other intent but that the second will should thereby more surely take place." It was decreed that the first will was not revoked. tator, or by 28. A will can only be cancelled by the testator By the Teshimself, or by some other person in his presence, his Direction. and by his express direction; so that if a stranger tears a will in pieces, it will not be thereby revoked. 29. A person having disinherited his heir by will, Haines v. a younger brother of the heir snatched the will out of Haines, the hands of the executor, and tore it into small 2 Vern. 441. pieces. Most of the pieces, particularly such parts wherein was the devise of the land, were picked up, and stitched together again. A bill was filed to have the will established; and it was decreed, that the devisee should hold and enjoy against the heir; and he to convey to the devisee; although there was no positive proof that the heir directed the tearing of the will. to cancel is 30. Any act of a testator, by which he shows his An Intention intention to cancel his will, though the will be not sufficient. actually cancelled, operates as a revocation. Bibb v. Thomas, 2 Black. R. 1043. 31. One Patin, who had for two months together frequently declared himself discontented with his will, being one day in bed, near the fire, ordered Mary Wilson, who attended him, to fetch his will, which she did, and delivered it to him, it being then whole, only somewhat erased. He opened it, looked at it, then gave it something of a rip with his hands, and so tore it as nearly to tear a bit off, then rumpled it together and threw it on the fire, but it fell off. However, it must soon have been burnt, had not Mary Wilson taken it up, and put it into her pocket. Patin 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 after 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 was never 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 J. E. that he had destroyed his will, and should make no other, till he had seen his brother John Mills, and desired J. E. would tell him so, and that he wanted to see him. He afterwards wrote to Mills 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:" afterwards desires 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 therefore found a verdict for the heir. A motion was made for a new trial, "and, per totam curiam, this The rule for a new trial was discharged. An Oblitera tion of Part does not revoke the Whole. 2 Vern. 498. 33. A. by will in writing, duly attested, devised to Burkitt v. his wife a copyhold estate. A. on the day he died, Burkitt, directed B. to obliterate some devises, but nothing as to the copyhold; and then caused a memorandum to be wrote, that he had examined and approved of the will, as so obliterated and altered in his presence by B., but did not republish it in the presence of three witnesses; but directed B. to carry it to one to write Sutton v. Sutton, it fair; and before it was brought back he became delirious. Held to be a good will of the copyhold. 34. Robert Sutton made his will, duly attested, and Cowp. 812. thereby gave all his estates, except a house at Bath, to trustees, in trust to sell, and to place out the money on government or real securities, for the purposes therein mentioned. The testator afterwards made several alterations, obliterations, and interlineations, in different parts of the will, which were not attested; but did not erase or alter the devise to the trustees. It was certified by the Court of King's Bench, upon a case sent out of Chancery, that the devise of the real estate to the trustees was not revoked. Larkins v. Larkins, 16. 35. A person devised a real estate to three trustees 3 Bos. & Pul. and their heirs, upon trust to sell. Some time after, the testator struck out the name of one of the trustees, by drawing a pen through it; and the question was, whether the devise to the trustees was revoked by the erasure of the name of one of them, after the execution of the will. Upon a case sent from the Court of Chancery for the opinion of the Court of Common Pleas, Lord Alvanley said, that a revocation by obliteration would have the same effect which a revocation by any other means would have, and no more. That the devisees must be considered in a court of law as joint tenants in fee absolutely. That it was argued that the revocation of the devise, as to one devisee, made an alteration in the interest of the others; but whatever this alteration was, it was not an alteration arising from a new gift, but merely from a revocation. If the remaining devisees were to acquire any estate which they had not before, something beyond a mere |