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singed only, and fell off, was sufficient within the statute.
destruction of will
It has been observed in a former part of this trea- A cancelled will tise, in commenting upon the case of Onyons v. revived by the Tyrer, that the cancelling is an act not necessarily a substituted operating as the revocation of a will; it is a circumstance presumptively indicating and expressing the intention, and presumptively also the execution of that intention; but it may be explained away by particular circumstances. In Onyons v. Tyrer the act of cancelling was in some sort merely conditional; it was for the purpose of making way for another disposition, and only for that purpose; and that disposition being never legally effectuated, the act of tearing the first will being unaccompanied with ány absolute intention of revocation, was held to be inoperative. But where the act of cancelling has not such immediate reference to another disposition by a new will, but is done upon grounds of absolute dissatisfaction with the will already made, the first will shall not be revived by the cancelling or destroying of a second,
If indeed the first will could be revived, after having been deliberately cancelled and its efficacy destroyed, by the cancelling of a subsequent will, as well might a will de novo be made by courts of justice for a party deceased, out of mere facts and conjectures. There is a great and manifest difference
between permitting the act of cancelling to be qualified by reference to the accompanying facts, which may shew it to have been done prospectively and in subserviency to a fresh testamentary disposition, and permitting proof of altered intention inferred from the cancelling of a second will, to re-establish the prior will after it has been once deliberately and unconditionally cancelled, This would be a republication by implication, which we have the authority of Lord C. J. Parker", afterwards Lord Macclesfield, for saying, cannot be done since the statute of frauds.
The case of Burtenshaw v. Gilbert will exemplify the observation just above made. There the testator, in 1759, duly executed his last will and testament, and also a duplicate thereof, but at the same time declared that it was not a will to his mind, and that he should alter it. In 1761 he made another will, which was also duly executed, the devises in which were different from those in the will of 1759, and at the end of it there was a declaration by which he revoked all former wills. After executing the latter will, the testator took one part of the old will in his hands, tore off the name and seal, and directed the person who had made the new will, to cut off the names of the witnesses to the old one, which he did in the testator's presence. The testator at the same
time said that a duplicate of the former will was in the hands of W. a devisee therein. He then delivered the new will to the person that made it, requesting him to take it away with him to his house, and keep it, for reasons which he mentioned. Afterwards a principal devisee in the former will died, soon after which the testator sent for the last will, and in 1762 that will was returned to him. The testator, before his death, sent for his attorney to make a new will, but became senseless before he arrived. On his death, one part of the will of 1759, and also the will of 1761, were found together in a paper, both cancelled. The other part of the will of 1759 was found uncancelled in the testator's room, among other deeds and papers; how it came there did not appear (3); but W., a devisee therein, was in the house when the searches were inade. The question
(3) In a very recent case in chancery it was held, that where a of the presumptestator cancels the part in his custody, the strong legal presumption is tion from findi
a that the duplicate in the possession of another was not meant to pre- and an uncan
celled will, vail—That if both are in the possession of the testator, the one cancelled and the other uncancelled, the presumption still holds, but it has less strength-If both are in the testator's possession, the one altered and cancelled, the other in statu quo prius, the presumption against the operative existence of either may still remain, but with a strength yet more diminished. It seems to have been the doctrine of that case that either of these predicaments is enough to constitute a prima facie case for the heir, so as to throw the burthen of proof on the devisee, who is to encounter the presumption by evidence of contrary intention, see Pemberton v. Pemberton, 13 Vez, jun. 290.
was, whether the testator died intestate or not; that is, whether the will of 1759 was revoked? And it was held that the will of 1759 was revoked; first by the new will of 1761, which was a complete, legal, and effectual will, and would have revoked the former whetlier it had been cancelled or not, because at the end of it there was a declaration revoking all former wills; secondly, because the testator had actually cancelled the will of 1759.
If a testator This case also confirms the dictum of Sir Thomas makes duplicates, and can. Powis, at the end of the case of Onyons v. Tyrer', æls one, the effect of the that if a man having duplicates of his will, cancels other is de stroyed. one of such duplicates with the intention of destroy
ing his will, this is a good revocation of the whole
In Burtenshaw v. Gilbert the first will was cancelled; but it has been decided, that where a second will is made, the first remaining uncancelled, and afterwards the second will is cancelled, the first is in force as a good will at the testator's death. Thus in Goudright v. Glaziers, where a testator made a will of lands, and afterwards gave the same lands to the same person by another will, but omitted to cancel the former, but before his death cancelled the latter, and both were found in his custody at his decease, the second cancelled, the first uncancelled, the first will was held to be effectual; the court observing that a will is ambulatory till the death of the testator. If he let it stand till he die, it is his will; if he do not suffer it so to do, it is not his will. Here though the testator made two wills, yet the second will never operated; for it was only intentional, and the testator changed his intention; and cancelled the second so that it had no effect: it was indeed no will at all, being cancelled before his death; then the former, which was never cancelled, stood as his will.
fi P. Wms. 345.
& 4 Burr. 2512, and see the book 44 Ass, pl. 36.
Alteration and Erasure,
A WILL is not revoked by alteration or erasure, but to the extent of the particular object of such alteration or erasure; though this seems to have been a point never precisely in judgment before the case of Larkins v. Larkins, which was lately decided in the Court of Common Pleasa. We must be Difference in the
effect of alteracareful, however, not to confound erasure with alte- tion and mere
: 3 Bos. et Pull. 16.