obliteration. 2. By a subsequent testamentary disposition. 3. By an express revocation contained in a will or codicil or in any other distinct writing. 4. By the republication of a prior will. 5. By marriage or other change of circumstances; and therewith of presumptive or implied revocation.

It may here be observed that, by reason of the above enactment contained in the 20th section, a testator cannot delegate his power of revoking the will, by inserting in it a clause conferring on another an authority to destroy it after his death. (j)

SECTION I.

A testator

cannot au

thorize a destroyed

will to be

after his

death.

Revocation by Destruction, Burning, Tearing, Cancellation, or Obliteration.

1 Vict.

It will be observed, that the 20th section of the new statute of wills confines the modes of total revocation by means of any act done to the instrument itself, to "burning, tear- c. 26, s. 20: ing, or otherwise destroying."

It is obvious, also, that a part only of a will may be revoked in the manner here described; for the statute says that " no will, or any part thereof, shall be revoked otherwise than, &c. or by the burning, tearing, or otherwise destroying the same,” &c. (k)

sect. 21.

And as to partial revocation, it is further enacted by* sect. 21, that no obliteration, interlineation, or other alteration, made after the execution, 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 is required for the execution of the will.

By the sixth section of the statute of frauds, with respect to devises of lands, revocations of this nature were confined to "burning, cancelling, tearing, or obliterating the same.” (k1)

This section, however, did not extend to wills of personal property; but with respect to them it was merely provided, by sect.

(5) Stockwell v. Ritherdon, 1 Robert. 661, per Sir H. Jenner Fust; S. C. 6 Notes of Cas. 409, 414; [and if, in such a case, the will is destroyed, its contents

may be proved aliunde. Re North, 6 Jur. 564.]

Robert. 563,

(k) Clarke v. Scripps,
567, by Sir J. Dodson.
(k1) [See ante, 127, note (h1).]

22, that no will concerning any goods or chattels or personal estate should be repealed or altered "by any words." (1)

To what

cases the

extends:

The 34th section of the new statute enacts, that "this act shall not extend to any will made before the 1st day of Jannew statute uary, 1838;" and certainly these words are of very general import; and seem to leave all wills, made before January 1, 1838, in the same situation as if the act had not passed, and to be dealt with in all respects, with regard to execution, revocation, or alteration, according to the law as it then stood; and if this were the true construction, a testator, whose will was in existence before January, 1838, if he should live for fifty years after that date, might at any time during his life revoke the will by any of the modes which were effectual according to the old ecclesiastical law, or make alterations in it to any extent, or at any period, without regard to the exigencies of the statute of Victoria. But the interpretation of the act, which has been adopted by the prerogative court, and approved by the privy council, is, that the operation of the act was meant only to be suspended with respect to the execution of such wills as were already made at the passing of the act and those made between the passing of the act and the 1st of January, 1838, and that a will made before the statute came into operation is not exempted from the necessity of complying with the provisions of the new law with respect to any act done to it after that period. (m)

every act done to a will after Jan. 1,

1838, must be in compliance with the statute

though the will be

made before that date:

at what

ations, &c. without date shall be presumed to

*

A further question of much importance has arisen with reference to this subject, viz, whether in a case where unattime alter- tested alterations appear on the face of a will, and no information can be given, and there are no circumstances, one way or the other, to show when the alterations were have been made, the presumption is, that they were made before or after the execution of the will. After some variety of decision in the prerogative court of Canterbury, (n) it has been

made:

(7) See the section verbatim, ante, 120. (m) In the Goods of Livock, 1 Curt. 906; Hobbs v. Knight, 1 Curt. 768; Brooke v. Kent, 3 Moore P. C. C. 334; De Zichy Ferraris v. Lord Hertford, 3 Curt. 468, 512, 513; Croker v. Lord Hertford, 4 Moore P. C. 339, 356. [As to the effect on a will, of an unexplained and material

alteration in it, which upon inspection appears to have been made after execution, see In re Wilson, 8 Wis. 171.]

(n) See In the Goods of Stow, 4 Notes of Cas. 477; Burgoyne v. Showler, 1 Robert. 5, 13; S. C. 3 Notes of Cas. 201; In the Goods of Saumarez, Ib. 208; [Wikoff's Appeal, 15 Penn. St. 281.]

established by the judgment of the judicial committee of the privy council, in Cooper v. Bockett (0) (which has been confirmed by several subsequent cases in both the temporal and spiritual courts), (p) that the presumption in such a case is that the alterations were made after the execution. (q) So where a will and codicil were in the testator's custody, and the will is found mutilated after his death, in the absence of evidence, the presumption is that it was mutilated by the testator, after the execution of the codicil. (r) Consequently, if the will is dated on or after January 1st, 1838, it is obvious that the alterations also must be taken to have been made after the new act came into operation. (8) It has

* also been held, that this presumption is not at all varied or altered by the circumstance of a codicil to the will having been duly executed. The presumption of law must still be that the alterations were made after the execution of the codicil; unless there be proof or internal evidence to the contrary, in which case the codicil, being a republication of the will, would republish the will with the alterations. (t)

But if the will is dated before the 1st of January, 1838, the point does not appear to be yet settled, whether the presumption is that they were made before or after the act came into operation; for though they must be taken to have been made after the execution of the will, it does not follow that they were made on or after January 1st, 1838. (u) It may be observed that in the instance of an unattested will without date, where the case is bare of circumstances from which the time when it was made may be inferred, it has been held that the presumption is that it was made before the act came into operation. (v)

In the Goods of Swindin, 2 Robert. 192. Where some trifling alterations and interlineations appeared on the face of a holograph will, and there was no evidence whether they were written before or after the execution, except the affidavit of an expert that, in his opinion, they were written at the same time as the rest of the will, on that evidence the court admitted them to probate. In the Goods of Hindmarch, L. R. 1 P. & D. 307. [See Goods of Cadge, L. R. 1 P. & D. 543.] It may here be observed that where probate has been granted of a will made after the new wills act came into operation "with the several alterations, interlineations, and erasures appearing thereon," it must be taken as conclusively settled by the ecclesiastical court, that the will was, at its execution, in the state in which it is found. Thus where probate had been granted of a will with cross lines drawn in ink over the bequests of certain legacies, Lord Cranworth C. held, that the testator must be taken to have executed the instrument with the cross lines drawn over it, and his meaning was that the legacies were not to stand part of the will. Gann v. Gregory, 3 De G., M. & G. 777. See, also, Shea v.

Boschetti, 18 Beav. 321, and post, pt. 1. bk. VI. ch. I.

(t) Lushington v. Onslow, 6 Notes of Cas. 183; [Rowley v. Merlin, 6 Jur. N. S. 1165;] In the Goods of Bradley, 5 Notes of Cas. 186.

(u) See In the Goods of Pennington, 1 Notes of Cas. 399; Wynn v. Heveringham, 1 Coll. 630. See, also, Banks v. Thornton, 11 Hare, 180, per Wood V. C. (v) Pechell v. Jenkinson, 2 Curt. 273; ante, 68. And on the authority of this case, and of In the Goods of Pennington, ante, note (u), Sir C. Cresswell held, hasitans, that the presumption is the same as to alterations. In the Goods of Streaker, 28 L. J., P. M. & A. 50. See, also, Benson v. Benson, L. R. 2 P. & D. 172. In that case a will duly executed before the passing of the wills act, and remaining in the testator's custody till his death, after the passing of the wills act, was found with his signature crossed out. In the absence of evidence as to the date when the crossing out was done, the court (Lord Penzance) refused to presume that it was before 1838, and therefore pronounced for the will.

what shall

amount to

a revoca

tory act of tion, if

destruc

done before

Jan. 1,

1838:

With respect to what shall amount to an act of destruction, if done before January 1, 1838, sufficient to operate as a total revocation; if the testator has torn off or effaced his * seal and signature at the end of a will, the court will infer an intention to revoke the whole will, this being (until the passing of the new statute) the ordinary mode of performing that operation. (w) Again, where lines were drawn over the name of the testator, this was held to amount to a revocation by cancellation. (x) So tearing off the seal only of a will, where the attestation clause declares it was signed and sealed, has been held a cancellation. (y) And the principle appears to have been established, that if the intention to revoke was apparent, an act of destruction or cancellation should carry such intention into effect, although not literally an effectual destruction or cancellation, provided the testator had completed all he designed to do for that purpose. (2) Thus in a case decided in the prerogative court (afterwards taken up on appeal to the delegates, where the decisions below were confirmed), a will was found in the repositories of the deceased, and it appeared that some one had carefully cut out, apparently with scissors, the whole of the instrument from its marginal frame; the attestation clause was also cut through, but no part of the writing; and it was held, that the court was bound to construe the act as one done by the testatrix for the purpose of cancelling, revoking, or destroying the validity of the instrument, and consequently that it was thereby revoked. (a)

after Jan.

With respect to the acts of destruction or cancellation done after the new act came into operation: It will be ob- if done served, that the words "cancelling" and "obliterating," 1, 1838. which occur in the statute of frauds, are omitted in the 20th section of the new statute of wills, and that the words "otherwise destroying," are substituted. It has been considered that these latter words mean modes of destruction ejusdem generis, as cutting,

(w) Scruby v. Fordham, 1 Add. 78.

(z) Slade v. Friend, cited by Sir G. Lee, 2 Cas. temp. Lee, 34; [Baptist Church v. Robbarts, 2 Penn. St. 110.]

(y) Lumbell v. Lumbell, 3 Hagg. 568. See, also, Davies v. Davies, 1 Cas. temp. Lee, 444; [post, 138, and cases in note (1).]

(z) See Andrew v. Motley, 12 C. B. N. S. 525, per Willes J.

(a) Moore v. Moore, 1 Phillim. 357. See Grantley v. Garthwaite, 2 Russ. 90, for an instance of erasure which does not amount to a cancellation. See, also, Martins v. Gardiner, 8 Sim. 73.