payments made by the testator after the execution of his will. It was shown on the trial that neither list contained the names of all the creditors mentioned in the schedule attached to the deed of assignment, nor of all the creditors who had proved and filed their claims.

Under this state of facts, such of the creditors as were omitted by the testator from the list he made out claim that, under the terms of the will, they are to be considered in the class to be paid, and that the general direction to pay is not to be modified by the list left by the testator, according to which he expressed his intention that payments should be made. He was under no legal obligation to pay these debts, for they were all either extinguished by the assignment proceedings, or subject to the statute of limitations, and I am of opinion that if the bequest is good it must be limited to the debts contained in the list left by the testator with the will.

It is insisted, however, by the other legatees that the whole bequest is void, because the persons who were to take are not named individually, but as a class, and in order to ascertain who constitute the class. reference must be made to a paper not executed according to the law of wills. It is clear that this case differs from one where legacies are given subject to deductions for advancements to be ascertained from charges in a book of account, or other evidence thereof to which the testator may refer, for in such case the testamentary disposition is complete and needs no aid from other sources although subject to debts or advancements, for they may be proved without reference to any memoranda. The gift is complete, its payment during the life of the testator in whole or in part may be shown in exoneration of it, and therefore, in determining the question under consideration, we are afforded no assistance by Moore's Case, 61 N. J. Eq. 616, 47 Atl. 731, for there the disposition was testamentary, subject to advancements which the testator restricted to the amount he considered he had advanced.

My conclusion on this branch of the case is that the bequest to the creditors of the testator now under consideration is void, because it is an attempt to bequeath property to a class of persons who can only be ascertained by reference to a nontestamentary paper which the testator might change from day to day, and thus enlarge or diminish his testamentary gifts as often as he chose without observing the rules of law relating to the testamentary disposition of property. The effect, if it should be permitted, would be to allow a testator to declare the particular legatees to whom his estate should go without the formality required by law in such cases.

CHAPTER VII

THE REVOCATION OF WILLS

SECTION 1.-STATUTES

THE STATUTE OF FRAUDS.

VI. And, moreover, no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence and by his directions and consent; (2) but all devises and bequests of lands and tenements shall remain and continue in force, until the same be burned, cancelled, torn or obliterated by the testaton or his directions, in manner aforesaid, or unless the same be altered by some other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses declaring the same; any former law or usage to the contrary notwithstanding.

his or her neir, customary fen, tactului, vi qummstiatoi, ui

1 On the revocation of wills, see 28 Am. St. Rep. 344, note; 7 L. R. A. 561,

note.

son entitled as his or her next of kin, under the Statute of Distribution).

XIX. And be it further enacted, that no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.

XX. And be it further enacted, that no will or codicil, or any part thereof, shall be revoked otherwise than as aforesaid, or by another will or codicil executed in manner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.

XXI. And be it further enacted, that no obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will. XXIII. And be it further enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death.

XXIV. And be it further enacted, that every will shall be construed with reference to the real and personal estate comprised in it as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

7 Wm. IV & 1 Vict. c. 26, §§ XVIII-XXIV (1837).

SECTION 2.-REVOCATION BY SUBSEQUENT INSTRUMENT

BROOK v. WARDE.

(Nisi Prius. 1572. 3 Dyer, 310b.)

20

One Kyete, of Kent, by his will in writing, devised his land of gavelkind to one Harrison in fee; and five days before his death he revoked his will in this point, by parol only, in the presence of three witnesses, requiring their testimony of his present revocation; and

2, 163, 737,

759

said to them further, that he would alter this in his written will when he came to town, &c., and before his coming thither he was murdered. by the said Harrison. And Harrison caused the will in writing, as it was at first, to be proved; and by color thereof entered into the devise, and then was attainted of murder, and hanged: and his son entered by the law of gavelkind, s. The father to the bough, the son to the plough. This matter came out in evidence to jury of Kent this term, in ejectione firmæ between Brooke and Warde; and this manner of revocation by parol as above was affirmed for sufficient revocation at bar and bench, although it was not in writing, nor the first will in that point cancelled or defaced; vide bene."

LYON v. DADA.

(Supreme Court of Michigan, 1901. 127 Mich. 395, 86 N. W. 946.)

MONTGOMERY, C. J. This is an appeal from an order of the circuit court refusing probate to the will of Laura E. Dada, deceased. A will of later date was offered for probate, and the decision denying probate to this will was affirmed by this court in Lyon v. Dada, 111 Mich. 340, 69 N. W. 654. That later purported will contained a clause revoking all former wills.

The question presented by this appeal is whether denial of probate to this will is res adjudicata upon the question of whether it revokes the former will. This question was before the court of Massachusetts in the early case of Laughton v. Atkins, 1 Pick. 535, where this subject is treated in an able and exhaustive opinion by Parker, C. J. The principles to be extracted from that case are that all persons interested in an estate are parties to the probate proceedings, and bound by them, and that the disallowance of a will in toto on the ground of undue influence amounts to a determination that the revocatory clause is in

2 "In England, before the statute of frauds, a written will might be revoked by a nuncupative testament, and it was in consequence of an atrocious conspiracy to set up a nuncupative will over a prior written one that the glaring defect in the law came to be perceived, and that the statute was passed. The history of the transaction is given in a note to Matthews v. Warner, 4 Ves. 196. Mr. Cole, three years before his death, had made a written will giving £3,000 to charitable uses. Mrs. Cole set up a nuncupative will, by which the whole estate was given to her. Upon the trial it appeared that most of the witnesses to this will were perjured, and that Mrs. Cole was guilty of subornation. And upon this occasion Lord Nottingham said: 'I hope to see, one day, a law that no written will should be revoked, but by writing.' The next year, the statute of frauds was passed. * There are very good reasons why an individual, he who has not yet executed a written will, should be permitted, under peculiar circumstances to make a verbal one. But when he has already executed a written will, with [all the solemnities of the law, there are equally strong reasons why the revocation of it should be attended with the same solemnities." Grimke, J., in Devisees of David McCune v. House, 8 Ohio, 144, 145, 31 Am. Dec. 438 (1837).

d

effectual. This case was cited and followed in Rudy v. Ulrich, 69 Pa. 177, 8 Am. Rep. 238, and is cited and approved in Wallis v. Wallis, 114 Mass. 512.

In the present case it was determined in the former issue that the entire will was void on the ground of undue influence There was no attempt to probate any part of the will, nor was the determination confined to any single clause of the will. We think the case is within the principle of those cited. See, also, Dudley v. Gates, 124 Mich. 440, 83 N. W. 97, 86 N. W. 959.

The judgment of the circuit court will be reversed, and an order entered admitting the will to probate. The appellant will be entitled to recover his costs, to be paid out of the estate.

HOOKER, J., did not sit. The other justices concurred.

The same doctrine holds where the later will is rejected for lack of) testamentary capacity. In the Matter of the Probate of the Will of David Goldsticker, 192 N. Y. 35, 84 N. E. 581 (1908). See cases cited in 18 L. R. A. (N. S.) 99, note. But in New York the decree rejecting probate is not conclusive as regards realty, because a decree admitting a will to probate is/ in that state conclusive only as to personalty. Corley v. McElmeel, 149 N. Y. 228, 43 N. E. 628 (1896).

"A will legally made stands until legally revoked. It cannot be revoked by any act of destruction, unless the act is done with an intention to revoke; and a person, not having testamentary capacity, cannot have an intention to revoke a will. He is legally incapable of it. In such case the burning of the will can have no effect whatever, provided the contents can be clearly and certainly proved by other evidence. The written instrument may be burnt, the surest and best evidence of the will may be destroyed, but the will itself, if a draft of it can be proved, outlives the act of destruction, and the testamentary dispositions stand. I am of the opinion that the same result follows where the act of destruction is produced by undue influence, as where incapacity exists. There can hardly be a logical difference, whether the act of destruction be accomplished by a testator who has no mind to exercise, or, having a mind of his own, is prevented from exercising it. Insanity takes away testamentary capacity, while undue influence does not allow it to act. There must be animus revocandi. In the one case providence prevents it; in the other case it is prevented by the wrongful act of man. In each case the hand of the testator acts; but the mind does not go with the act." Peters, J., in Rich v. Gilkey, 73 Me. 595, 597, 601 (1881). On the probate of a will which was revoked as a result of undue Influence, see Batton v. Watson, 13 Ga. 63, 58 Am. Dec. 504 (1853); Voorhees v. Voorhees, 39 N. Y. 463, 100 Am. Dec. 458 (1868). See, also, McIntire v. Worthington, 68 Md. 203, 12 Atl. 251 (1887); Laughton v. Atkins, 1 Pick. (Mass.) 535, 546, 547 (1823).

In Rudy v. Ulrich, 69 Pa. 177, 8 Am. Rep. 238 (1871), where in prior litigation a later will had been found invalid as an entirety because of undue influence and then in the case at bar the jury found that there was no undue inanence as to the revocation, the court held that it was reversible error to submit to the jury the question of whether the later will revoked the earlier, as a collateral attack on the earlier decree could not be allowed. Besides, said court,

sufficient to justify a legal judgment, that where there is a clause of revocation in a will making a certain disposition of property, that the testator really intended to revoke a prior will making a different disposition, except for the purpose of substituting in place thereof that contained in the second will." 69 Pa. 183, 8 Am. Rep. 238.

On the effect of acquiescence in the destruction of a will under a statute providing for the establishment of destroyed wills, see Parsons v. Balson, 129 Wis. 311, 109 N. W. 136 (1906). At pages 318, 319, of 129 Wis., and page

destined by ne lacking capacity