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codicil contains independent provisions which may stand alone.

Where a will is found torn, mutilated or defaced, it is competent to show that this was the result of time or accident, or the unlawful act of a third person, and was not done by the testator with the intention of revoking it. Where the will remains in the custody, or within the reach of the testator, until his death, and is then found mutilated or cancelled, the presumption is, that it was done by the testator with the intention of revoking it.* If it had remained in the custody of a third person, and was inaccessible to the testator, the presumption is that it was not done by the testator or by his authority. In every case the presumption is only prima facie, and may be rebutted by showing the actual facts and intentions of testator.†

Where a will is shown to have existed, but cannot be found after the testator's death, it will be presumed that he destroyed it with the intention of revoking it, where it remained within his reach and he was of sound mind. But if at the time the will was probably destroyed, the testator was of unsound mind, or if the will was inaccessible to him, the presumption will be, that it was not destroyed as a result of his involuntary act. But in either case these presumptions may be rebutted, and the will established if its contents can be shown.‡

*Christmas v. Whinyates, 3 Sw. & Tr. 81; King v. Ponton, 82 Cal. 420; Tomlinson's Est., 133 Pa. St. 245.

Johnson's Will, 40 Conn. 587; Valentine's Will, 93 Wis. 45. Behrens v. Behrens, 47 O. S. 323; Gardiner v. Gardiner, 177

Sec. 992. SAME
SAME

SUBJECT-REVOCATION

BY LATER INSTRUMENT.—It is a general rule that the latest will or codicil duly executed by the testator controls, and therefore revokes all former wills, by which a different disposition of the property is made.† But a later will, unless it contains express words revoking former wills, has that effect only to the extent that the two are inconsistent; so far as they are not inconsistent the two stand together.‡

The revoking instrument need not always be a later

Pa. St. 218; Steinke's Will, 95 Wis. 121; Harris v. Harris, 10 Wash. 555. The declarations of the testator in his lifetime are admissible both to reaffirm and rebut presumptions of revocation which arise from its disappearance, while the will was in his custody. Valentine's Will, 93 Wis. 45.

"It is now settled by statute, in most jurisdictions, that if the will is to be revoked by a later instrument, that instrument must be executed with the formalities of a will, and that no matter how clear testator's intention may be, an instrument executed without these forms cannot revoke a will." Page on Wills, Sec. 264, citing Cheese v. Lovejoy, 46 L. J. P. 66; 2 P. D. 251; Barksdale v. Hopkins, 23 Ga. 332; West v. West, 144 Mo. 119; Kennedy v. Upshaw, 64 Tex. 411, and others. So a holographic will, where valid, will revoke a written will. Gordon v. Whitlock, 92 Va. 723; Ennis v. Smith, 14 How. 400, contra, In re Soher, 78 Cal. 477. But a nuncupative will cannot revoke a prior written will unless the state statute authorizes this to be done. Woodward v. Woodward, 5 Sneed (Tenn.) 49.

Wetmore v. Parker, 52 N. Y. 450; Home v. Noble, 172 U. S. 383; Snowhill v. Snowhill, 3 Zab. 448; Sturgis v. Work, 122 Ind. 134; Austin v. Oakes, 117 N. Y. 577. In the last case cited the second will failed; there being no express revocation clause in it, it was held that the first will was not revoked.

will or codicil, but may be in the form of a deed, or simply contain the revoking clause and nothing else.*

That is, a will may be revoked by an express writing for that purpose, though the writing is not testamentary in its character, but such revoking instrument must be executed with the same formalities required for a will.t

Where the later will or codicil contains an express revocation clause, revoking all other wills, this clause operates to revoke all previous instruments even though the other provisions of the revoking will prove inoperative.‡

But where a will which contains an express revocation clause also contains language which clearly shows that the testator did not mean to revoke the former will, but only to alter or change its provisions, and to have them stand and be effective in their altered form, the previous will may stand and have effect according to such intentions.§

In conflicts between inconsistent wills, courts incline to that construction, in doubtful cases, which will pre

*Paine v. Forsythe, 86 Me. 357; Bayley v. Bayley, 5 Cush. 245; in this last case the revoking instrument was held sufficient when containing this clause duly executed: "It is my wish that the will I made be destroyed and my estate settled according to law."

†Barksdale v. Hopkins, 23 Ga. 332; Noyes' Will, 61 Vt. 14. Burns v. Travis, 117 Ind. 44; Walls v. Walls, 182 Pa. St. 226; Pierpont v. Patrick, 53 N. Y. 591.

Gelbke v. Gelbke, 88 Ala. 427; Watt's Est., 168 Pa. St.

vent partial intestacy. When two inconsistent wills of the same date, or of no date at all, are found, and nothing can be shown as to their relative order of execution, both must fail; but if one can be shown to be later in fact, it will control."

*

But usually the later will, when designed to revoke an earlier will, contains an express clause to that effect, and such a clause will in general operate according to its terms.

A revoking will or codicil, properly executed, when shown to have existed, and that it was not itself revoked, and that its provisions were inconsistent with the former will or that it contained an express revoking clause, will be given effect, even though lost or mislaid, so that it cannot be produced, if proof can be made of its contents.†

Whether the revocation of a later will shall operate to revive an earlier will revoked by it, is a question upon which the authorities are in conflict. In some States and in England the question is settled by statutes which declare, that a will in any manner revoked, shall not be revived, except by a re-execution.‡

*Murphy's Est., 104 Cal. 554; Crossman v. Crossman, 95 N. Y. 145; Gordon v. Whitlock, 92 Va. 723. So where the will is executed in duplicate, both parts operate as one will, and the later one does not revoke the earlier. (Odenuoelder v. Schorr, 8 Mo. App. 458.)

Wallis v. Wallis, 114 Mass. 510; West v. West, 144 Mo. 119; Lambie's Est., 97 Mich. 49; McIntyre v. McIntyre, 162 U. S. 383; 38 Minn. 169.

The Statute 1 Vict., c. 26, Sec. 22; Stickney's Will, 161

Where no such statutes exist, a distinction has been made between the revocation of a later will which expressly revokes the earlier one, and one which revokes the earlier one by implication only. As to the former, it is usually held that revocation of the later will does not revive the former one.† As to the second case, many courts reach the same conclusion, though perhaps the weight of authority is that the revocation of the later inconsistent will, leaves the former one in force. The reason being that the second instrument revokes the first only by implication and as it would have no force itself until the death of the testator and being recalled before his death, leaves the first will valid.§

There seems to be no conflict that where the revoking instrument contains a clause of revocation, and is

N. Y. 42; Wolf v. Bollinger, 62 Ill. 368; Barker v. Bell, 49 Ala. 284. In some states the statutes require merely that it shall appear from the terms of the revocation of the later will that it was the intention of the testator to revive the former. Under such statutes, declarations of the testator are admissible to show his intentions. Williams v. Williams, 142 Mass. 515; McClure v. McClure, 86 Tenn. 173.

†Pickens v. Davis, 134 Mass. 252; Scot v. Fink, 45 Mich. 241; Barksdale v. Hopkins, 23 Ga. 332. Contra, Randall v. Beatty, 31 N. J. Eq. 643; Taylor v. Taylor, 2 Nott & McC. (S. Car.) 482.

Peck's App., 50 Conn. 562, 47 Am. Rep. 685; Johnston's Will, 69 Hun (N. Y.) 157; McClure v. McClure, 86 Tenn. 173. Contra, Hartwell v. Lively, 30 Ga. 315.

Cheese v. North, 106 Mich. 390; Scott v. Fink, 45 Mich.

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