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will or tenant

interest devisable and transmissibles. This legal And the good
interest, though become a tenancy only from year to right which ac-
year, attracted to itself that sort of tenant-right, or passes with it.
good, will, on which the claim to a renewal would
have grounded itself, for it was a sort of excrescence
out of the old subsisting lease which had expired.
The Court therefore considered, that if this interest
would pass by the will, such benefit of renewal would
pass also as an adjunct to it, subject to the operation
of the same testamentary disposition,

It was therefore said by his Lordship, that whether the interest of the renewed lease, (supposing such lease to have been renewed in the testator's life-time) would or would not have passed, must be decided, to raise any question between these parties upon the record. For the lease not having been renewed, and the testator being at his death possessed of no larger interest than from year to year, the doctrine cannot be applied, unless it would have been applied, if he had been lessee in the renewed lease. His Lordship then laid it down when words are as a sound rule of construction, that when words are, fcient to pass by their import, prima facie equivalent to pass future future interests interests in personal estate, that construction ought that constructo prevail, unless the context, in sound interpre- prevail unless tation, calls for another construction ; and this de- the context. pends upon the context of the whole will.

His Lordship thought that though there was a dif

3 See Doe v. Porter, 3 T. R. 13.

ference between the leases, the lease in question not containing the same direct covenant for renewal which occurred in the others, yet there was enough in the lease in question pointing that way, to lead the testator to think that the expiration of the term would not put an end to the interest. Some parts of the will, particularly the last bequest, must be interpreted to pass the renewed lease, and the different clauses in the will are much the same in effect, though expressed in different words. The obligation upon the wife to renew from time to time, shews that he meant not only the interest he had in the present lease, but the interest she would acquire under the covenant. Between the bequests accompanied with this express direction to renew, is the bequest of the premises in question ; and the person who was tenant for life of these premises, is the wife and the general residuary legatee. His general intention therefore was, that as to the particular part, so specially given to her, she should take only a life interest, and as general residuary legatee she should take absolutely for her own benefit (7).

(7) Had the testator held over after the expiration of his term and died in the mere occupation of the premises as a tenant by sufferance, he could have given no title at all by his bequest. The particular legatee or legatees could have taken no interest in such a subject under his will. And supposing, in such a case, another person instead of the executrix to have been the residuary legatee, the executrix renewing the lease, would, in equity, according to the opinion of his Lordship, have been considered as doing it for the benefit of the residuary

PART XII.

Cancelling.

AMONG the methods whereby a will may be revoked is that of the destruction of the instrument itself by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, and by his directions and consent; which methods of revocation are excepted expressly out of the statute of frauds. But we are to observe that it has been Cancelling, an always an established point, both before and since that equivocal act. statute, that the act of cancelling or destroying a will, is in itself an equivocal act, and that its operation as a revocation depends upon the intent with which it was done, which must be made to appear; for if a man were to throw ink upon his will instead of sand, though it were a complete defacing or obliterating of the will, it would not be a revocation; or if a testator, designing to cancel his former will, were accidentally

legatee, who, in preference to the particular legatee, would have a right to the benefit of such casual opportunities as arose out of the succession to the mere occupation ; for the particular bequest could operate nothing, and must have been considered as making no part of the will. But in this case, as the executrix was also general legatee of the residue, it appeared to his Lordship that she would have been precluded from holding it for herself.

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makes a second will, and in terms revokes

appears that

the revocation of the first will

effect to the sea

to cancel one subsequently made and meant to be his last will, such an act would clearly be no revocation ; but in these cases the intention must go vern. This was the ground of the determination in

Onyons v. Tyrer', from which case it appears, that if If a testator a testator cancels his first will, and by a subsequent

will, not properly executed, as by being neglected the first, but it to be subscribed by the three witnesses in the festator's presence, sets up a

a devise contained in the first was only to give will, the first will, as to such devise, stands uncond, the second revoked, notwithstanding the testator in his second cation it inel will expressly revokes his first, and such express reLectual for want vocation would, in other respects, be available as a of the proper at

declaration in writing within the statute. For it is plain he did not mean to revoke his first will, as to the particular lands devised by it, unless he might by the second will, at the same time that he revoked the first, set up the like devise, so as to take effect by the second will. And if by the latter will the premises had been given to a third person, it should never, said the Court, have let in the heir, since the meaning of such second will would still be to give to the second devisee what it had taken from the first, without any consideration had to the heir, and if the second devisee took nothing, the first could have lost nothing

testation,

It is plain that the testator did not mean to revoke the former will by cancelling simply, as a

: 2 Vern. 743. 1 P. Wms. 345. Prec. in Ch. 459.

self-subsisting independent act, but by substituting at the same time another perfect will in its place, and not otherwise; and therefore the cancelling was but a circumstance, shewing that he thought he had made another good disposition by the second will. The effect of such cancelling depended upon the validity of the second will, and ought to be taken as one act, done at the same time; so that if the second will was not valid, as the testator thought it was, and without which he would not have cancelled the first, the cancelling of the first will being dependent thereon, ought to be looked upon as null and inoperative also. In a word, it is relievable in equity, under the head of accident or mistake.

Hyde v. Hyde o, is also a case which shews that the cancelling(1) or tearing a will must be done animo revocandi to have the effect in law of destroying the validity of the will. The case was briefly as follows: A man made his will in writing, and thereby devised all his real and personal estate to his wife, her heirs,

• 1 Eq. C. Abr. 409.

(1) It is obvious that the word, cancelling' is used here only to signify the manual operation of tearing of destroying the instrument itself, and not the virtual effect of destroying its validity; and in this sense only is it used, in the clause of the statute of Charles, where its effect of revoking a will is excepted out of the restriction thereby created. But when the cases speak, as they sometimes do, of the animus cancellandi it is manifest that they use the word as importing the same as revocandi, and not merely as the sign or mode of rerocation.

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