revocation would be necessary. If therefore the devisees had been tenants in common, upon the erasure of one name, the remaining two would take no more than two thirds of the estate. The Court certified that the devise of the estate to the two trustees, to whom, together with the third trustee, the said estate was devised, as joint tenants, in trust to be sold, was not revoked by the testator's having struck out the name of the third trustee, after the execution of the said will. Smith, 4 East, 419. 36. T. Carwardine duly made his will, by which he Short v. devised the premises in question to J. Spillman and E. Aldridge, upon several trusts. The testator afterwards made several alterations in the will, and among others struck out the name of J. Spillman, and introduced the names of J. Wood and J. Adey; and did not afterwards republish his will. The question was, whether it was revoked or not. Lord Ellenborough." It has been contended in this case that the testator T. C. has died intestate, as to the premises in question, and that his heir at law is entitled to recover; inasmuch as the obliteration of the name of J. Spillman, one of the devisees in trust, must have been taken to have been done animo revocandi, and is a revocation of the devise made of the premises: and that it must be also taken that his intention was to have another will, accompanied with the solemnities required by the statute of frauds; or at least to have republished the will, obliterated and altered as it is: on which the question arises; and the case in Dyer, 310 b. has been relied on. The facts of this case plainly show that the testator had no object but to change his trustee; and it would be unreasonable, when he has not, by any thing he has done, indicated any intention to dispose of his lands to different purposes than those declared by his will, and when it clearly appears that he meant to disinherit his heir at law, to infer that he designed that his will should become inoperative, and so let in his heir at law, by what he did; rather than to conclude that he thought he had, by the alterations introduced, made a valid disposition of his estate to the new trustees; and that he had no design to alter his will, except so far as such obliteration and interlineation could effectuate that purpose, by substituting the persons whose names he interlined in the stead of him whose name was struck out. If such be the case, and so it appears to us, the testator meant no revocation, but by means of that which he, through mistake, supposed to be a valid disposition to others; and had no intention to revoke, by the obliteration he has made, but by an effectual substitution, meant to be made of others in the room of him whose name was so obliterated; and if so, this case must be governed ante, § 21. by that of Onions v. Tyrer, 1 P. Wms. 343, where the intention of the testator not being to revoke his first will by cancelling, but by substituting another perfect will in lieu thereof, Lord Chancellor Cowper, on the same ground, set up a like devise, and held a cancellation of the first will to be no revocation. But in this case it has been further argued for the defendants, that supposing the obliteration of the name of Spillman to have revoked the devise to him, the heir at law cannot recover, inasmuch as the devise to Aldridge remained unrevoked, and we think there is great weight in this argument; and that there are grounds on which it may be contended, that the effect of the obliteration in this case is, at most, to revoke only the devise as to Spillman, the one devisee in trust whose name is so obliterated, leaving it unrevoked as to Aldridge: the interlineations which were intended to add other trustees, being for want of a proper publication, inoperative: and therefore giving its full effect to that obliteration, it would leave the devise to Aldridge in full force, and competent to sustain all the trusts of the will, in exclusion of the heir at law. one part re other. 2 Vern. 742. 37. Where there is a duplicate of a will, and the Cancelling testator cancels the part which is in his own possession, vokes the though the other remain entire, yet it will be a revocation of the whole will. For the original and dupli- 1 P. Wms. cate being but one will, they must stand or fall 346. together; and it may not be in the testator's power to v. Gilbert, get possession of the duplicate. Burtenshaw infra, c. 7. 38. Besides the different modes of revoking a will Of implied allowed by the statute of frauds, certain alterations Revocations. in the situation of the testator, or in the estate devised, have been held to be implied revocations of a will. Birth of a 39. It is now fully established that marriage, and Marriage and the birth of a child, operate as an implied revocation of a will. Child. v. Chris topher, 40. A person made his will in the time of a former Christopher wife, who died without having had any children; and afterwards married a second wife, by whom he 4 Burr. 2182. had issue the plaintiff. The Court of Exchequer held that the second marriage, and the having issue by that marriage, was a revocation of the will. Stone, 41. A person made a will in Jamaica, in the year Spragge v. 1764, by which he devised his real and personal Doug. 35. estate to the defendant. Afterwards he made another Amb. 721. will in England, not duly attested, by which he devised his real and personal estate to his wife, in trust for his son. The Chancellor of Jamaica decreed that the marriage and birth of a child, and the VOL. VI. I Browne v. Thompson, 1 Ab. Eq. 413. Brady v. Doug. 31. second will, amounted to a revocation as to the personalty, but not as to the real estate. On an appeal to the Privy Council, Lord Ch. J. De Grey, Lord Ch. B. Parker, and Sir Eardley Wilmot being present, so much of the decree as established the first will, with respect to the real estate, was reversed. And it was declared, that the subsequent marriage and birth of a child were, in point of law, an implied revocation of the first will. 42. Marriage and the birth of a child do not however in all cases amount to an implied revocation of a will; for these facts only afford a presumption that the testator had changed his intention; so that where this presumption is rebutted by other circumstances, the rule will not hold. 43. A bachelor made his will, by which he gave a legacy of 500 l. to his brother, and legacies to other persons, and devised his real estate to Eliza Close and her heirs. The testator afterwards married Eliza Close, and died without altering his will; leaving her pregnant of a son. The question was, whether this alteration in the testator's situation operated as a revocation of his will. Lord Keeper Wright was clearly of opinion, that an alteration of circumstances might amount to a revocation of a will of lands, as well as of personal estate, notwithstanding the statute of frauds, which does not extend to an implied revocation. But that no such alteration appeared here, for no injury was done to any person; and those were provided for, for whom the testator was most bound to provide ; and established the will, 44. Lord Mansfield has said, that as marriage and the birth of a child only amount to an implied revocation of a former will, these may be rebutted by every sort of evidence, even parol evidence; and there was no case in which a marriage and the birth of a child had been held to raise an implied revocation, where there had not been a disposition of the whole estate. 45. It has been held by Lord Eldon, that a second Ex parte Ilchester, marriage and the birth of children, the wife and 7 Ves. 348. children being provided for by settlement, and there being children by a former marriage, was a case of exception from the rule that marriage and the birth of a child revoke a will. 46. It was determined in a modern case, that marriage and the birth of a posthumous child operated as a revocation of a will of lands, made before marriage. Lancashire, 5 Term R.49. 47. A person being a bachelor, devised lands to Doe v. his nephew, and afterwards married. Upon his wife's becoming pregnant, he expressed an intention to revoke his will, and gave directions to an attorney to prepare another will; but died before it was ready. After his death his widow was delivered of a child, who brought an ejectment against the devisees. Lord Kenyon said, it had been solemnly decided that marriage and the subsequent birth of a child amounted to a revocation of a will, made before marriage. Perhaps the foundation of that principle was not so much an intention to alter the will, implied from those circumstances happening afterwards, as a tacit condition annexed to the will itself, at the time of making it, that the party did not intend that it should take effect, if there should be a total change in the situation of his family. He cited a passage from Justinian's Institutes, and one from Vinius's Comment, to show that by the civil law, if the wife was pregnant, and a posthumous child was afterwards |