Ambulatory and revocable *CHAPTER THE THIRD. OF THE REVOCATION OF WILLS OF PERSONALTY. THERE has already been occasion to observe that a will is in all cases whatever a revocable instrument. For though a man may make his testament and last will irrevocable nature of a in the strongest and most express terms, yet he may revoke it; because his own act and deed cannot alter the judgment of law to make that irrevocable which is of its own nature revocable. (a) A will is, therefore, said to be ambulatory until the death of the testator. (b) will. Mutual er ever in equity. It has already been stated that a mutual and conjoint will is unknown to the testamentary law of this country. (c) will: wheth- One ground of objection to such an instrument as tesirrevocable tamentary, is its irrevocability. (c) However, such a will may, it should seem in some cases, be enforced in equity as a compact. (c2) In Dufour v. Pereira, (d) Mrs. Camilla Rancer, the wife of Mr. Rancer, being entitled to a legacy under the will of her aunt, she and her husband agreed to make a mutual will, which they did, and both executed it; the husband died; the wife proved his will, and afterwards made another will. And (a) Vynior's case, 8 Co. 82 a; Swinb. 454. An oral promise to make a will of pt. 7, s. 14, pl. 2. all the testator's property, real and personal, in favor of a person who in consideration thereof agreed to make a similar will in favor of the first testator, and made one accordingly, was held to be a contract for the sale of lands, within the statute of frauds, almost the entire property of both parties being real estate. v. Mansfield, 103 Mass. 408. See Caton v. Caton, L. R. 1 Ch. Ap. 137; Harder v. Harder, 2 Sandf. Ch. 17; Johnson v. (b) The making of a will is but the inception of it, and it doth not take effect till the death of the testator; for omne testamentum morte consummatum est, et voluntas est ambulatoria usque ad extremum Vitæ exitum. Then it would be against the nature of a will to be so absolute that he who makes it cannot countermand it. Forse & Hembling's case, 4 Co. 61 b. (c) Ante, 10. (c) [See Schumaker v. Schmidt, 44 Hubbell, 2 Stockt. Ch. 332.] Ala. 454; ante, 10, and notes.] Gould (d) 1 Dick. 419. [See Bynum v. By (c2) [Schumaker v. Schmidt, 44 Ala. num, 11 Ired. 632.] the question was, whether it was in the power of the wife to revoke the mutual will. Lord Camden C. "This question arises on a mutual will of the husband and wife; the will is jointly executed by them; what the wife disposes of, is the residue of her aunt's estate, given to her by her will. I do not find the cases go so far as to consider a legacy to a wife as excluding the husband by implication; but there is no occasion to determine that question: the question is, as the husband by the mutual will assents to his wife's right, and makes it separate, whether the second will by the wife is to be considered as void. It struck me at first, more from the novelty of the thing than its difficulty. The case must be decided by the laws of this country. The will was made here; the parties lived here; and the funds are here. Consider how far the mutual will is binding, and whether the accepting of the legacies under it by the survivor is not a confirmation of it. I am of opinion it is. It might have been revoked by both jointly, it might have been revoked separately, provided the party who intended it had given notice to the other of such revocation. But I cannot be of opinion that either of them could, during their joint lives, do it secretly; or that after the death of either, it could be done by the survivor by another will. It is a contract between the parties, which cannot be rescinded but by the consent of both. The first that dies carries his part of the contract into execution. Will the court afterwards permit the other to break the contract? Certainly not. The defendant, Camilla Rancer, hath taken the benefit of the bequest in her favor by the mutual will, and hath proved it as such; she hath thereby certainly confirmed it; and therefore I am of opinion the last will of the wife, so far as it breaks in upon the mutual will, is void. And I declare, that Mrs. Camilla Rancer, having proved the mutual will after her husband's death, and having possessed all his personal estate, and enjoyed the interest thereof during her life, hath by those acts bound her assets to make good all her bequests in the said mutual will; and therefore let the necessary accounts be taken." (e) This case was succeeded by that of Walpole v. Lord * Orford, (ƒ) where the will of George, Earl of Orford, made in 1756, and (e) See this judgment also reported in (f) 3 Ves. 402. 2 Harg. Jurid. Arg. 272; 2 Harg. Jurid. Exerc. 101. Horace Lord Walpole's codicil of the same date, made in concert, constituted, in effect, a mutual will. Horace Lord Walpole died in 1757, without revoking his part of the mutual will, namely, the codicil of 1756. George, Earl of Orford, died in 1791; when it appeared that he had made a codicil in 1776; and this, by reason of a reference to his last will, bearing date in 1752, was construed a revocation of his part of the mutual will, namely, the will of 1756. A case was then raised in equity, that the mutual will of 1756 became irrevocable on the death of Lord Walpole in 1757, though it was admitted to have been revocable by either during the joint lives of Lord Walpole and Lord Orford, with notice to the other. And the judgment of Lord Camden, in Dufour v. Pereira, was mainly relied on in support of that position. Lord Loughborough, however, refused to enforce the compact of the mutual will; but this was chiefly, it seems, by reason of the uncertainty, and, in some sense, unfairness, of the compact; so that it leaves the principle of Lord Camden's decision in Dufour v. Pereira wholly unshaken. (g) Will held tee was in duced by it to render services to the testator. And here it may be right to mention the case of Loftus v. Maw. (h) In that case the testator induced his niece irrevocable to reside with him as his housekeeper, on a promise that where legahe would leave her certain property by his will; and he executed a codicil to that effect, which he took his niece to his solicitor's office to see, in order to satisfy her mind and to induce her to continue in his service, and by these means did induce her so to continue; but subsequently, by another codicil, he revoked that which he had so made in her favor and Stuart V. C. held that, as the niece had been induced to render valuable services to the testator on the faith of the representation, that by so doing she would become entitled to the benefit of the trusts created in her favor by the codicil, the testator had no right to revoke it; and therefore his honor decreed that the trusts in her favor thereby declared should be performed. : By stat. 1 Vict. c. 26, s. 20, it is enacted, "that no will or (g) See 1 Add. 278, note by the learned reporter to Hobson v. Blackburn, and also Mr. Hargrave's remarks on the case of Walpole v. Lord Orford, in 2 Jurid. Arg. 272; 2 Jurid. Ex. 101. See, also, 1 Vict. c. No will to be revoked other will or codicil, or by a writing ex 26, s. 20. but by an codicil, or any part thereof, shall be revoked otherwise than as aforesaid [i. e. by marriage under sect. 18], 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 herein before 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." (h1) (h) [The sixth section of the statute of frauds enacts that no devise in writing of lands, &c. nor any clause thereof, shall 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, by the testator himself, or in his presence, and by his directions and consent; but all devises and bequests of lands, &c. shall remain and continue in force (until the same be burnt, &c.), 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. It will be observed that the revocation by burning, &c. was not required to be attested by witnesses. But see Bulkley v. Redmond, 2 Bradf. Sur. 281. These provisions, in the statute of frauds, respecting the revocation of wills, have in substance been very generally adopted in the American States, both as to wills of real and of personal estate. "To prevent the admission," says Chancellor Kent," of loose and uncertain testimony, countervailing the operation of an instrument made with the formalities prescribed, it is provided that the revocation must be by another instrument executed in the same manner, or else by burning, cancelling, tearing, or obliterating the same by the testator himself, or in his presence, and by his direction. This is the language of the English statute of frauds, and of the statute law of every part of the United States." 4 Kent, 520, 521. See White v. Casten, 1 Jones Law (N. Car.), 197; Clark v. Smith, 34 Barb. 140; Kent ecuted like will, or by destruction: v. Mahaffey, 10 Ohio St. 204; Lawyer v. Smith, 8 Mich. 411; Belden v. Carter, 4 Day, 66; Ray v. Walton, 2 A. K. Marsh. 73; Pringle v. M'Pherson, 2 Brevard, 279; Barksdale v. Barksdale, 12 Leigh, 535; Nelson v. Public Administrator, 2 Bradf. Sur. 210; Graves v. Sheldon, 2 D. Chip. 71. Thus, in Massachusetts, no will shall be revoked, unless by burning, tearing, cancelling, 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, or by some other will, codicil, or writing, signed, attested, and subscribed in the manner provided for making a will; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition and circumstances of the testator. Genl. Sts. c. 92 § 11. Corresponding and similar provisions will be found in the statutes of other states. See Bayley v. Bailey, 5 Cush. 245; Laughton v. Atkins, 1 Pick. 535; Reid v. Borland, 14 Mass. 208. In Iowa, wills can be revoked, in whole or in part, only by being cancelled or destroyed by the act or direction of the testator with the intention of so revoking them, or by the execution of subsequent wills; when done by cancellation, the revocation requires to be witnessed in the same manner as the execution of a new will. Laws of Iowa (Revis. of 1860), 407, §§ 2320, 2321. As to the revocation of wills in Connecticut, see Card v. Grinman, 5 Conn. 164; Witter v. Mott, 2 Conn. 67; Brant v. Wilson, 8 Conn. 56. In Delaware, see Smith v. Dolby, 4 Harring. 350. In Pennsyl Hence it appears that there is a distinction between a will or a codicil, and some writing. Accordingly, where at the foot of his will the deceased wrote a memorandum to the effect," This will was cancelled this day," and he duly executed such memorandum in the presence of two witnesses, it was held that such memorandum was not a will or codicil, but only a writing which could not be admitted to probate. (i) But the propriety of this decision may be doubted. Surely the memorandum was "a writing declaring an intention to revoke." (¿1) 1 Vict. c. 26, s. 21. No altera tion in a will shall have any effect unless executed as a will. And by sect. 21, it is 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 herein before 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.” By sect. 34, "This act shall not extend to any will made before the 1st day of January, 1838." With regard, therefore, to wills, to which the act does not extend, it is necessary to consider the law as it stood at the time of the passing of the statute, with respect to revocations, 1st, by cancellation, destruction, or vania, see Lewis v. Lewis, 2 Watts & S. 455; Lawson v. Morrison, 2 Dallas, 289; Baptist Church v. Robbarts, 2 Penn. St. 110; Burns v. Burns, 4 Serg. & R. 297; Boudinot v. Bradford, 2 Yeates, 170; S. C. 2 Dallas, 268; Hine v. Hine, 31 Penn. St. 246. A will can be revoked only in manner provided by statute, and cannot be annulled, or changed, by any verbal directions or declarations of the testator made after its execution. Boylan v. Meeker, 2 Dutcher, 274. See Lewis v. Lewis, 2 Watts & S. 455; Gaines v. Gaines, 2 A. K. Marsh. 190; Clingan v. Mitcheltree, 31 Penn. St. 25.] (i) In the Goods of Fraser, L. R. 2 P. & D. 40. See, also, In the Goods of Hicks, L. R. 1 P. & D. 683. [The "other writing" in the wills act of Pennsylvania, 1833, by which the revocation of a will may be declared, has been held not to be a will of which probate is necessary. But it is otherwise when the revocation is in what purports to be a will disposing of property. Rudy v. Ulrich, 69 Penn. St. 177; post, 181, note (s2).] (i) [A will once revoked by written declaration cannot be set up or republished by parol. Witter v. Mott, 2 Conn. 67; Love v. Johnston, 12 Ired. Law, 355; Sawyer v. Sawyer, 7 Jones (Law), 174.] |