evidence, the learned judge left it to the jury to say whether the testator had done all he intended, or whether he was not prevented from completing the act of destruction he intended. The jury found a verdict for the defendants, establishing the will; and now

W. E. Taunton moved for a new trial.

ABBOTT, C. J. Upon the evidence, it appears, in the present case, that the testator, being moved with a sudden impulse of passion against one of the devisees under his will, conceived the intention of cancelling it, and of accomplishing that object by tearing. Having torn it twice through, but before he had completed his purpose, his arms were arrested by a bystander, and his anger mitigated by the submission of the party who had provoked him; he then proceeded no farther, and after having fitted the pieces together, and found that no material word had been obliterated, he said, "It is well it is no worse." Now, if the cancellation had been once complete, nothing that took place afterwards could set up the will. But it was a question for the jury to determine whether the act of cancellation was complete. They have found that it was not, and that it was the intention of the testator, if he had not been stopped, to have done more, in order to carry his purpose into effect. I can see no reason to think that verdict wrong.

BAYLEY, J. I think this verdict right. If the testator had done all that he originally intended, it would have amounted to a cancellation of the will; and nothing that afterwards took place could set it up again. But if the jury were satisfied that he was stopped in medio, then the act not having been completed will not be sufficient to destroy the validity of the will. Suppose a person having an intention to cancel his will by burning it, were to throw it on the fire, and upon a sudden change of purpose, were to take it off again, it could not be contended that it was a cancellation. So here, there was evidence from which a change of purpose before the completion of the act, might properly be inferred. The jury have drawn that inference, and I see no reason to disturb the verdict.

HOLROYD, J. I was of opinion, at the trial, that if the act of tearing was completed nothing that took place afterwards was sufficient to set up the will again. The Statute of Frauds says "that no devise in writing of lands shall be revocable, otherwise than by some other will, or by burning, cancelling, tearing, or obliterating the same by the testator," etc.; but, in order to effect this, the act of tearing, etc., must be complete. I left it to the jury to say, whether that was so, and they were of opinion, that the testator had not completed the act he had intended, and I thought that they drew the right conclusion from the evidence.

BEST, J. I am of opinion, that the verdict is right. Tearing is one of the modes by which a will may be cancelled; but it cannot be contended that every tearing is a cancellation: for if it were, a testator, who took his will into his hands with intent to tear it, must, if he should tear it in the smallest degree and then stop, be considered as

2.2

P-405;

4119412

having cancelled it. The real question in these cases is, whether the
act be complete. If the testator here, after tearing it twice through,
had thrown the fragments on the ground, it might have been properly
considered, that he intended to go no farther, and that the cancellation
was complete; but here there is evidence, that he intended to go far-
ther, and that he was only stopped from proceeding by an appeal made
to his compassion by the person who was one of the objects of his
bounty. The case in Blackstone is very distinguishable; for there the
testator completed his purpose, although the will was not destroyed.
I see no reason, therefore, for disturbing the verdict.
Rule refused.1

In re GOODS OF MORTON.

(High Court of Justice, Probate Division, 1887. L. R. 12 P. D. 141.) Henrietta G. Morton, late of Newcastle-on-Tyne, deceased, died January 26, 1887, having duly executed a last will, bearing date September 16, 1853. After her death the will, which had remained in her possession, was found in a trunk with the signatures of the testatrix and the attesting witnesses scratched out as if with a penknife. At the bottom of the will there was a memorandum in the handwriting of the deceased, dated "November, Saturday, 1861," but not executed, whereby for reasons given the will was declared to be canceled.

Searle, moved for a grant of administration to Sarah Francis Morton, the sole surviving sister and next of kin of deceased, as in case of intestacy.

BUTT, J. I do not think there is any difficulty in the case. What the testatrix did may be regarded as a lateral cutting out. The paper is not pierced, but the signatures are scratched away. I think the will has been revoked, and I grant administration to the applicant.19

18 See Elms v. Elms, 1 Sw. & Tr. 155 (1858).

19 In Hobbs v. Knight, 1 Curt. 768 (1838), where it was held that, by cutting out his signature to the will with the intent to revoke, the testator thereby revoked his will either by tearing or by destroying it within the meaning of the Wills Act, the court (Sir Herbert Jenner) said: “The signature of the testator being, as I before said, an essential part of a will, It is difficult to comprehend when that which is essential to the existence of a thing, is destroyed, how the thing itself can exist. There can be no doubt that if the name of the testator had been burned or torn out, the revocation would have been as complete as if the will had been torn into twenty pieces. If this were not the case, it would lead to many absurd consequences. But it has been argued, that as the present act of Parliament has pointed out certain modes with regard to the revocation of wills, the court cannot go beyond the express terms of the act; that the words being confined to burning, tearing, or otherwise destroying, omitting the terms 'obliterating' and 'canceling' used in the Statute of Frauds; there must be an actual burning or tearing, or as to 'otherwise destroying', that the whole instrument must be destroyed; that the cutting, in the present case, is not tearing-(burning is out of the question)-and the instrument not being destroyed, that' there is no revocation; and upon this part of the argument, the case of Doe

GAY v. GAY.

(Supreme Court of Iowa, 1882. 60 Iowa, 415, 14 N. W. 238, 46 Am. Rep. 78.) This is a proceeding at law to set aside the probate of a will of Harvey D. Gay. The petition alleges that the instrument in question was at one time the last will of Harvey D. Gay, but that during his life-time he destroyed it by crossing his name, and by cutting and tearing the same with intent to revoke and destroy the will, and that since that time it has not been of any force or validity. The cause was tried to a jury, and the court directed them to find that the will was not revoked. The plaintiff appeals.

DAY, J. Harvey D. Gay died in July, 1878. Some time after his death his widow, Virginia Gay, discovered a package of papers in the secretary in the back parlor. Soon thereafter she gave the papers to Mr. Hawkins, the administrator of the estate. About the last of Au

dem. Reed v. Harris, 6 Ad. & Ell. 209, 1 Nev. & P. 405, in the Queen's Bench,
was referred to, in which the testator had thrown his will on the fire, with
the intention of destroying it, and a part of the cover was burnt, but there
being no burning on the instrument itself, the judges of that court held that
the will was not revoked; that the words of the Statute of Frauds had not
been complied with. But that case is not applicable to the present point, for
here a part of the will, the most essential is removed, and
case the name of the testator had been burned or torn off, I think the
Court of Queen's Bench would have held that to be an effectual revocation
by burning or tearing, for, according to the judgment in that case, it was
not required that the whole will should be burned or torn. The learned
judges do not say how much it is necessary should be burned, but Mr. Jus-
tice Coleridge says it is sufficient, if the entirety of the will is destroyed;
his expressions are these: 'We were pressed with the argument: Must the
whole of the document be destroyed? I say no; but there must be a de-
struction of so much as to impair the entirety of the will, so that it may be
said that the will does not exist in the manner framed by the testator.' So
I say here, Is not the entirety of the will destroyed by the removal of the
signature of the testator? It is true this is not an act of tearing, in the
strict sense of that term; but, if the circumstances of this case required it, I
think it would not be difficult to show that a will might be revoked by cutting
with an instrument as well as by tearing, if a corresponding effect be produc-
ed by the one act as by the other. The Latin equivalent for the verb 'to tear,'
is lacerare, but I find, upon looking into the dictionaries, that exscindere, 'to
cut out,' is also used in the sense of 'to tear,' and Cicero uses the phrase
'exscindere epistolam' (which is remarkable), with regard to the destruction
of a document. But it is unnecessary to enter further into the consideration
of this point, for, consistently with the true construction of the act of Par-
liament, and the decision of the learned judges of the Court of Queen's
Bench, it is not necessary, in order to bring the act within the meaning of
the words 'otherwise destroying,' that the material of the will should be de-
stroyed it is sufficient, as it appears to me, if the essence of the instrument
(not the material) be destroyed. Suppose a will to be written in pencil, and
the words were removed by means of Indian rubber; could there be any
doubt that that would be a sufficient revocation? Cutting is a mode of de-
stroying as effectual as tearing, and it appears to me that if tearing a will
to this extent be a sufficient destruction of it, the same effect must be at-
tributed to the act of cutting it; what would be the consequences of a dif-
ferent construction? Suppose a will were torn into two or more pieces, the
will, no doubt, would be revoked; but if it were cut into twenty pieces with
a knife, that would be no revocation, and if the pieces could be collected and

gust, 1880, the administrator, in looking over these papers, which conisted chiefly of canceled mortgages, found the paper in question, purporting to be the last will of Harvey D. Gay. When found, two scrolls were drawn with a pen lengthwise along the signature, but not in such manner as to obliterate it or render it illegible. The will was then filed in the office of the clerk of the circuit court for the purpose of probating it. Some time thereafter the deputy clerk, in unfolding the will, tore the right-hand margin to the depth of one-eighth or onefourth of an inch. This tear communicated with and opened a cut just over the signature, about two or three inches in length. When this cut was made does not satisfactorily appear, but the evidence shows that it was not made entirely through the paper, and that it was not visible until it was opened by the deputy clerk.

1. The determination of the question involved will be greatly facilitated by considering the state of the law upon the subject prior to the adoption of the statute under which the question arises. By the sixth

pasted together, the will must be pronounced for by the court. I cannot con-
ceive it possible that it was the intention of the Legislature to leave the law
in that state. The question then comes to this: whether this be or be not
a destruction of the will. I consider the name of the testator to be essen-
tial to the existence of a will, and that if that name be removed, the es-
sential part of the will is removed and the will is destroyed; otherwise the
statute does certainly not deserve the title it bears, namely, 'An act to amend
the laws with respect to wills.' It was said in the argument (perhaps it is
not very material) that a will cannot now be revoked by obliteration, the
term 'obliteration' having been advisedly omitted by the Legislature; but I
am not prepared to say (although I now merely throw this out) that a will
may not be revoked in that way, for I see no reason why, if the obliteration
amount to a destruction of the will (that is, if the name of the testator, which
is essential to a will, be so obliterated that it cannot be made out), a will
may not be revoked in that way as well as any other. Suppose a testator
had so obliterated his name from a will as to render it impossible to make
it out, and I am not at liberty to supply it by evidence aliunde, how would
this operate with respect to the 21st clause of the act, which enacts, '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'?
By this clause, as I understand it, where words are so obliterated that they
do not appear, it is a good revocation pro tanto. Would not the same rule
be applied with respect to the name of the testator? I think that it was the
intention of the Legislature that it should be sufficient if the name of the
testator was so obliterated that it could not be made out; it never could be
intended that a testator might revoke his will pro tanto, and yet not be at
liberty to revoke the whole will." The court also expressed the opinion that
"if the names of the attesting witnesses were erased by the testator animo
revocandi, it would be a sufficient revocation. It might be difficult to make
it appear that the names of the witnesses were erased animo revocandi;
but if it could appear, I should be of opinion that it would amount to a de-
struction of the will, within the meaning of the act of Parliament. I do not
think that the words 'otherwise destroying' mean that the material of the
will must be destroyed, but that it must be something which would amount
to a destruction of the will itself."
revocation, see Price v. Powell, 3 H.
which fasten the sheets of the will
sheets, is held not to be a tearing.
South. 98, 85 Am. St. Rep. 145 (1900).

That tearing off a seal to revoke is a & N. 341 (1858). Merely removing pins together, without otherwise injuring the Woodruff v. Hundley, 127 Ala. 640, 29

section of the statute of frauds (29 Car. II, c. 3) it is provided that the revocation of a will by injury to the instrument itself can be effected only "by burning, canceling, tearing, or obliterating the same by the testator himself, or in his presence, and by his direction and consent." Under this statute it was held that to constitute a revocation of a will by burning there must at least be a burning of a part of the paper on which the will is (Reed v. Harris, 8 Adol. & E. 1), and that a very slight act of tearing and burning is sufficient to effect a revocation, if done with such intention (Mole v. Thomas, 2 W. Bl. 1043); that when a pencil, instead of a pen, is used for cancellation,| the revocation is not necessarily ineffectual, and it may be shown that it was intended to be final (Mence v. Mence, 18 Ves. 348; Frances v. Grover, 5 Hare, 39); and that, in order to constitute a revocation by obliteration, it is not essential that every word shall be obliterated, the revocation being complete if enough of the material part be expunged to show an intention that the devise shall not stand, as where the testator draws his pen across the devisee's name (Mence v. Mence, 18 Ves. 350; 1 Jarman, Wills, 129–135).

The act 1 Vict. c. 26, provides that the revocation of a will, by injury to the instrument itself, shall be only "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." This statute, it is to be observed, omits the words "canceling or obliterating," found in the statute of frauds, and substitutes therefor the words "otherwise destroying." Under this statute it has been held that the words "otherwise destroying" are to be taken to mean a destruction ejusdem generis with the modes before mentionedthat is, destruction, in the proper sense of the word, of the substance or contents of the will, or at least complete effacement of the writing, as by pasting over it a blank paper (Re Horsford, L. R. 3 P. & D. 211), and not a destroying in a secondary sense, as by canceling or incomplete obliteration (Stephens v. Taprell, 2 Curt. 458; Hobbs v. Knight, 1 Curt. 779); that cancellation and obliteration, unless they prevent the words as originally written from being apparent by looking at the will itself, are plainly excluded by the statute (Re Dyer, 5 Jur. 1016; Re Fary, 15 Jur. 1114); and that glasses may be used for discovering what the words obliterated originally were (1 Jarman, Wills, 142, and cases cited). Chapter 162 of the Revised Statutes of the territory of Iowa, § 9, respecting the revocation of a will by injury to the instrument cited, provides that "no will, nor any part thereof, shall be revoked unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction." This, it will be observed, is identical with the statute. 29 Car. II, c. 3.

In the Code of 1851 the provisions of our present statute were adopted as follows.