though it may be in existence at the time of the testator's death. (1)

referring to a will de

*It may here be mentioned, that it has been held, that A codicil a codicil which shows an ineffectual intention to revive an earlier will, which was destroyed, does not thereby revoke a will made subsequently to the destroyed will. (y)

stroved by does not

testator

revoke a later will.

SECTION III.

By Express Revocation.

RevocaJan. 1,

tions after

According to the new statute of wills (1 Vict. c. 26, s. 20), an express revocation of a will or other testamentary instrument cannot be effectual unless it be contained in a will or codicil executed as required by the act, or in "some writing declaring an intention to revoke the same, c. 26. and executed in the manner in which a will is hereinbefore required to be executed." (2)

18

1 Vict.

By sect. 34 it is enacted, that "this act shall not extend to any will made before January 1, 1838." The construction of which clause has been understood to be, with reference to the subject of the present inquiry, that the statute shall not extend to any act of revocation done with respect to a will before January 1, 1838. (a)

before Jan.

As to an express revocation, contained either in a will or codicil, or in any other distinct writing, before January 1, 1838, Revocation it was provided by the 6th section of the statute of 1, 1838. frauds (29 Car. 2, c. 3), that if a revocation of a will of lands was to arise from another will or codicil inconsistent with the first, such will or codicil must be executed according to the solemnities of the 5th section: and if the revocation was to arise from some other distinct writing, not being a will or codicil, such writing must be signed by the testator in the presence of three witnesses. (b) This provision, however, did not extend to a will of personal estate.

*

(1) [See ante, 148, note (x), 149; James v. Marvin, 3 Conn. 576.]

(y) Rogers v. Goodenough, 2 Sw. & Tr. 342. See post, pt. 1. bk. 11. ch. IV. § II.

(z) See this section verbatim, ante, 127, [and see note (h1), on same page.]

(a) Hobbs v. Knight, ante, 130. (b) 1 Saund. 276 h, 860, note to Duppa v. Mayo.

29 Car. 2, c. 3, cannot be by

But by the 22d section of the statute of frauds it was enacted, that "no will in writing, concerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein, be altered or changed by any words, or will by word of mouth only, except the same be, in the life of the testator, committed to writing, and after the writing thereof, read unto the testator, and allowed by him, and proved to be so done by three witnesses at the least."

words only:

This clause of the statute, it has already been remarked, did not operate to prevent a revocation by an instrument which amounted, according to the rules of the ecclesiastical court, to a subsequent will, although such instrument was never read over to the testator, or allowed by him. (c)

of inten

tion to re

voke, though in writing, does not

amount to a revocation.

But it must be observed, that a declaration of an intention to declaration revoke, though reduced into writing, according to the direction of the statute of frauds, would not amount to a revocation. (c1) Words declaring only a future intention to revoke, were not considered a revocation before that statute; as if the testator had said, "I will alter my will," or, "it shall not stand," these words being indicative only of an intention to revoke at some future time, were holden not to be a revocation. (d) And so it is since the statute of frauds, notwithstanding the instrument containing words of an intention to revoke be executed according to the directions of the statute. As where a testator by a subsequent will, duly executed and attested, devised away a reversion in fee, which had been given to him since the making of a former will, and at the conclusion of the subsequent will, added, that as to the rest of his real and personal estate, he intended to dispose of the same by a codicil to that his will thereafter to be made, and afterwards died without doing any other act to revoke his will; it was adjudged that these words, declaring only an intention to revoke, though reduced into writing, with all the formalities of the statute, did not amount to a revocation, any more than a parol declaration of the same words would have done before the statute. (e)

(c) Ante, 160, 161.

(c1) [See Brown v. Thorndike, 15 Pick. 388; Semmes v. Semmes, 7 Harr. & J. 388; Ray v. Walton, 2 A. K. Marsh. 71; Gaines v. Gaines, 2 A. K. Marsh. 190.]

(d) Cranvel v. Saunders, Cro. Jac. 497;

1 Roll. Abr. 615, P. pl. 1; Moor, 874, 875; 1 Saund. 279 g, note to Duppa v. Mayo.

(e) Thomas v. Evans, 2 East, 448. [In Brown v. Thorndike, 15 Pick. 388, the testator wrote on his will, “It is my in

However, in Walcott v. Ochterlony, (f) the deceased having made a will, which she deposited with a Mr. George, one of her executors, for safe custody, caused a letter to be written, desiring that the will might be destroyed. The executor did not destroy the will, and the deceased was not informed down to the time of her death, whether the will had been destroyed or not; but died without having altered her intention to revoke, and in the belief that she had done so; and Sir Herbert Jenner Fust held, that, under the circumstances, the will was revoked. The learned judge said that "there could be no doubt of her animus revocandi; and having established this point, what does the law require to give effect to such intention? The statute of frauds provides that no will in writing of personal estate shall be repealed, nor any clause or bequest therein altered or changed, by any words. Is this a revocation by words? I apprehend not. The deceased did not say, 'I revoke my will,' but in effect says, 'Mr. George is in possession of my will; I am not able to destroy it myself, but I desire that he will destroy it;' and this amounted to a present intention absolutely to revoke, which was written down at the time, approved of by the deceased, and by her direction communicated to the person in whose custody the will was; it was an absolute direction to revoke, reduced into writing in the deceased's lifetime. There is nothing in the statute of frauds which prevents such revocation having effect, and it is clear that, prior to the statute, a will might be so revoked." (g)

* Where a testatrix devised real estates, and by a subsequent void deed, attested by two witnesses, conveyed them to other trusts, it was held by Romilly M. R. that the deed was not a writing declaring an "intention to revoke" within the 23d section of the new statute of wills.

tention at some future time to alter the tenor of the above will, or rather to make another will; therefore, be it known, if I should die before another will is made, I desire that the foregoing be considered as revoked and of no effect;" and this was held to be a present revocation and not the declaration of an intent to revoke by some future act. See Semmes ". Semmes, 7 Harr. & J. 388; Reid v. Borland, 14 Mass. 308; Jones v. Murphy, 8 Watts & S. 275; Lawson v. Morrison, 2 Dallas,

Such a declaration need not be

289; Witter v. Mott, 2 Conn. 67. Of course the above would now operate as a revocation in Massachusetts only upon compliance with some one of the formalities required by the statute. Ante, 127, note (h1).]

(f) 1 Curt. 580.

(g) See, also, Doe v. Harris, 8 Ad. & El. 1; S. C. 2 Nev. & P. 615; ante, 137; [Shaw C. J. in Bayley v. Bailey, 5 Cush. 261; In the Goods of Gentry, L. R. 3 P. & D. 80.]

in terms, i. e. "I do declare that I intend to revoke my will," but must be in equivalent terms amounting to that. (h)

In the case of Doe v. Hicks, (i) it was stated by Tindal C. J. in delivering the opinion of the judges in the house of lords, that the principle on which that opinion proceeded was, that where a devise in a will is clear, it is incumbent on those who contend that it is not to take effect by reason of a revocation in a codicil, to show that the intention to revoke is equally clear and free from doubt as the original intention to devise. (j) And the law thus laid down has been recognized and acted upon as an established rule in numerous subsequent cases. (k)

Indeed, it may be stated generally as a canon of construction, that a clear gift cannot be cut down by any subsequent words. unless they show an equally clear intention. (1) But in applying this rule it is sufficient that the subsequent words indicate the tes