Chap. VI.

Distinction between cases of probate

and cases of construction.

Incapacity of beneficiary.

obliterated and the name of the second substituted, the original legatee takes on the ground that he was intended to take in the event of the substituted legatee being incapable of taking. In bonis McCabe, 3 P. & D. 94.

The cases on the doctrine of dependent relative revocation so far discussed have been cases in the Probate Court, where evidence of testamentary intention is always admissible.

Precisely the same doctrine applies in a Court of Construction, the only difference being that the intention to revoke a former gift only if a subsequent gift is effectually made must appear on the face of the instrument. No external evidence to prove the dependency of the two gifts is admissible.

Thus, if a legacy is given by will to A, and by a codicil the legacy to A is revoked, and the same legacy is given to B, who predeceases the testator, or for other reasons is incapable of taking, the legacy to A is nevertheless revoked. There is in such a case nothing to show that the legacy to A was only to be revoked if the legacy to B was effectually made, or in other words, no case of dependent relative revocation is made out. French's Case, Rolle's Ab. Devise, O. 4; Tupper v. Tupper, 1 K. & J. 665; Nevill v. Boddam, 28 B. 554; Quinn v. Butler, 6 Eq. 225; Baker v. Story, 23 W. R. 147.

It has been said that the doctrine of dependent relative revocation has no application, where the second disposition fails not from the infirmity of the instrument, but from the incapacity of the beneficiary. 1 Jarm. 156, 3rd ed.; 1 Wins. Exors. 131.

But this is a mere distinction of fact and not of principle. It may even be doubted whether it reconciles the cases in fact. See Quinn v. Butler, 6 Eq. 225. The true theory seems to be, that the doctrine of dependent relative revocation applies equally where the second legatee is incapacitated from taking, provided the case can be brought within the doctrine, or in other words, provided it can be shown that the original legacy was intended to be revoked only in the event of the second taking effect. The mere fact that a legacy is revoked and a different legacy to a different legatee substituted, affords no argument either in the Court of Probate or in a Court of Construction that the capacity

of the second legatee to take was the condition of the revocation

of the earlier legacy.

Chap. VI.

will-contents

A subsequent will is no revocation of a former one if the Subsequent contents of the later will are unknown, or if, though it is known unknown. that the later will differed from the former one, it is unknown in what respects it differed. Hitchins v. Basset, 3 Mod. 204; 2 Salk. 592; Show. P. C. 146; Dickinson v. Stidolph, 11 C. B. N. S. 341, 357; Hellier v. Hellier, 9 P. D. 237; see McAra v. McCay, 23 L. R. Ir. 138; see also 19 Ind. Ap. 87.

Where there are several testamentary instruments which are Several testamentary not inconsistent, they will together be considered the will of the instruments. testator so far as they are not inconsistent. In bonis Budd, 3 Sw. & T. 196; Berks v. Berks, 4 Sw. & T. 23; Lemage v. Goodban, 1 P. & D. 57; In bonis Fenwick, ib. 319; In bonis Griffith, 2 ib. 457; In bonis Patchell, 3 ib. 153; 'In bonis Hartley, 50 L. J. P. 1; In bonis Hodgkinson, 69 L. T. 150.

The fact that both instruments appoint a person sole executor will not cause the later instrument to revoke the former. In bonis Leese, 2 Sw. & T. 442; In bonis Graham, 3 ib. 69; Geares v. Price, 3 ib. 71.

instruments.

Where a subsequent will disposes or shows an intention of Inconsistent disposing of all the testator's property, it will be held to have revoked a prior will in toto, whether the dispositions contained in the subsequent will are different from the earlier dispositions or not. Henfrey v. Henfrey, 2 Curt. 468; 4 Moo. P. C. 29; Pepper v. Pepper, I. R. 5 Eq. 85; Plenty v. West, 2 Phillim. 264; Cottrell v. Cottrell, 2 P. & D. 397; Dempsey v. Lawson, 2 P. D. 98; O'Leary v. Douglass, 3 L. R. Ir. 323; In re M'Farlane, 13 L. R. Ir. 264; In bonis Turnour, 56 L. T. 671; In bonis Palmer; Palmer v. Peat, 58 L. J. P. 44.

This doctrine applies even though the second will cannot be found, and must be presumed to have been revoked. McAra v. McCay, 23 L. R. Ir. 138.

Where there are two testamentary instruments, and from their nature and the surrounding circumstances it is doubtful whether the later was intended to be in substitution for the earlier one, evidence is admissible to show the intention. Jenner v. Ffinch, 5 P. D. 106; Wainewright v. Wainewright, 71 L. T. 265.

Chap. VI.

Last will.

Clause of revocation.

Codicil reviving revoked will.

Codicil

reviving des troyed will.

The description of a testamentary document as the last will of the testator will not alone have the effect of revoking prior testamentary papers. Cutto v. Gilbert, 9 Moo. P. C. 131; Stoddart v. Grant, 1 Macq. 171; Lemage v. Goodban, 1 P. & D. 57; Leslie v. Leslie, I. R. 6 Eq. 332; Freeman v. Freeman, Kay, 479; 5 D. M. & G. 704; In bonis De la Saussaye, 3 P. & D. 42; In re O'Connor, 13 L. R. Ir. 406.

A will containing a clause revoking all former wills revokes a will made in execution of a general or special power. Sotheran v. Dening, 20 Ch. D. 99; Harvey v. Harvey, 23 W. R. 476; In re Kingdon; Wilkins v. Pryer, 32 Ch. D. 604; see In bonis Tenney, 45 L. T. 78.

In several cases where a will was made in exercise of a power, a second will made in exercise of another power and containing a general clause of revocation, has been held not to revoke the first will. In bonis Meredith, 29 L. J. P. 155; In bonis Merritt, 1 Sw. & T. 112; 7 W. R. 543; In bonis Joys, 30 L. J. P. 169; 4 Sw. & T. 214; see Richardson v. Barry, 3 Hag. 249; In re Kingdon; Wilkins v. Pryer, 32 Ch. D. 604.

A will under a power is revoked if a subsequent will contains an express reference to the power, or disposes of the property subject to the power, though it may not dispose of all of it. Richardson v. Barry, 3 Hag. 249; In bonis Eustace, 3 P. & D. 183; Harvey v. Harvey, 23 W. R. 478.

And a testamentary appointment under a general power is revoked by a subsequent will containing a residuary bequest. In re Gibbes' Settlement; White v. Randolf, 37 Ch. D. 143.

A codicil reviving a revoked will thereby revokes a will intermediate in date between the first revoked will and the codicil, and inconsistent with the first will. Lord Walpole v. Orford, 3 Ves. 402; In bonis Reynolds, 3 P. & D. 35.

Where will A is revoked by will B and destroyed, and there is a codicil, purporting to revive will A but ineffectual to do so, because will A is not in existence, the question arises, whether will B is revoked.

The cases on this subject are complicated. The rule appears to be, that if there are no dispositions in the codicil inconsistent

with will B, the mere fact, that the codicil is described as a codicil to will A, does not revoke will B. Rogers v. Goodenough, 2 Sw. & T. 342.

On the other hand, if the codicil contains dispositions inconsistent with will B, or expressly confirms will A, it seems will B is revoked, and the codicil alone is admissible to probate. Hale v. Tokelove, 2 Rob. 318; Newton v. Newton, 12 Ir. Ch. 118.

Chap. VI.

The destruction or cancellation of a will, whereby it is re- Revocation of voked, will not revoke a codicil. In bonis Dutton, 3 Sw. & T. codicil.

66; In bonis Ellice, 12 W. R. 353; In bonis Halliwell, 4 N. of C. 400; In bonis Coulthard, 11 Jur. N. S. 184; Tagart v. Hooper, 1 Curt. 289; Black v. Jobling, 1 P. & D. 685; In bonis Savage, 2 ib. 78; In bonis Turner, ib. 403; Gardiner v. Courthope, 12 P. D. 14; In bonis Clements, (1892) P. 254.

But if will and codicil are on the same piece of paper, cutting off the signature to the will will revoke the codicil, if the intention was to revoke both. In bonis Bleckley, 8 P. D. 169. Where a will is revoked by a subsequent codicil, it would be a question of construction, whether intermediate codicils are also revoked.

Effect of

codicil revoking will on earlier codicils.

Re-execution taining clause

of will con

of revocation.

If the revoking codicil refers to the will by date, or distinguishes between the will and subsequent codicils, the latter are not revoked. Farrer v. St. Catharine's Coll., 16 Eq. 19; see Bunny v. Bunny, 3 B. 109; Pratt v. Pratt, 14 Sim. 129. The re-execution of a will, containing a clause revoking all former testamentary instruments, will not revoke a codicil to the will, at any rate if the object of the re-execution appears to have been to give effect to alterations in the will, or if there is evidence to show that revocation of the codicil was not intended. Wade v. Nazer, 1 Rob. 627; Upfill v. Marshall, 3 Curt. 636; In bonis Rawlins, 48 L. J. P. 64; 28 W. R. 139. A codicil making an alteration in a will, referred to as a will Codicil confirming will. of a particular date, and confirming that will, does not, without other circumstances, revoke intermediate codicils. Smith v. Cunningham, 1 Add. 448; Crosbie v. Macdoual, 4 Ves. 610; In bonis De la Saussaye, 3 P. & D. 42; Green v. Tribe, 9 Ch. D. 231.

Chap. VI.

Testamentary letter.

Revocation by succession of

acts.

Acts done

named in

But an intermediate codicil may in effect be revoked if the second codicil shows an intention to confirm the will without the alteration made by the intermediate codicil. McLeod v. McNab, (1891) A. C. 471, P. C.

A codicil confirming the will except as altered by an earlier codicil referred to by its date does not revoke an intermediate codicil by which alterations have been made in the will. Follett v. Pettman, 23 Ch. D. 337.

A letter, duly signed and attested, requesting a third person to destroy the testator's will, is sufficient to revoke it. In bonis Durance, 2 P. & D. 406.

Where a testator intends to revoke his will by the performance of a succession of acts, some only of which he actually performs, the will is not revoked, though the acts performed might alone be sufficient to revoke it if the testator intended to do no more. Doe v. Perkes, 3 B. & A. 489; In bonis Colberg, 2 Curt. 832; Elms v. Elms, 1 Sw. & T. 155. See, too, Winson v. Pratt, 2 B. & B. 650; Locke v. James, 11 M. & W. 901; Kirke v. Kirke, 4 Russ. 435; Doe v. Harris, 6 A. & E. 209; 2 N. & P. 615.

But though a testator may have done everything which he must be those considered necessary to revoke his will, the will is not revoked if he has not adopted one or other of the modes of revocation pointed out in sect. 20. (See ante, p. 36.)

statute.

Revocation by third person.

Striking through

signature.

Thus, writing across a will that it is revoked, and throwing it into the waste paper basket, will not revoke the will if it is in fact preserved. Cheese v. Lovejoy, 2 P. D. 251. See Andrew v. Motley, 12 C. B. N. S. 514.

The revocatory acts, if done by a third person by the testator's direction, must also be done in his presence.

Thus, a will burnt by the testator's order but not in his presence, is not revoked. In bonis Dadds, Dea. & Sw. 290; Clark v. Dixon, 8 Times L. R. 11.

Striking through the will or the signature of the testator with a pen, or partial erasure of the signature by a knife, is not sufficient to revoke his will. Stephens v. Taprell, 2 Curt. 458; In bonis Rose, 4 N. of C. 101; Benson v. Benson, 2 P. & D.