172; Re Brewster, 6 Jur. N. S. 56; In bonis Godfrey, 69 L. T. 22. Chap. VI. A will found in the possession of the testator with the signa- Tearing off signature. ture cut off or scratched away will, in the absence of evidence to the contrary, be presumed to be revoked. In bonis Lewis, 1 Sw. & T. 31; Walker v. Armstrong, 21 B. 305; 4 W. R. 770; In bonis Gullan, 1 Sw. & T. 23; Hobbs v. Knight, 1 Curt. 768; Bell v. Fothergill, 2 P. & D. 148; In bonis Morton, 12 P. D. 141. And this is the case, though the piece cut off may be carefully preserved with the will. In bonis Simpson, 5 Jur. N. S. 1366; In re White, 3 L. R. Ir. 413; Bell v. Fothergill, 2 P. & D. 148 ; Magnesi v. Hazelton, 44 L. T. 586. names of Obliterating or tearing off the names of the attesting wit- Tearing off nesses is sufficient to revoke the will. In bonis James, 7 Jur. witnesses. N. S. 52; Abraham v. Joseph, 5 Jur. N. S. 179; Evans v. Dullow, 31 L. J. P. 128. Tearing off the name of one of the attesting witnesses would, no doubt, be sufficient to revoke the will. But the will is not revoked, if the name is carefully preserved with the will, and there is other evidence from the mode in which the piece cut off has been treated to rebut the presumption of revocation. In bonis Wheeler, 49 L. J. P. 29; In bonis Taylor, 63 L. T. 230. made. The destruction of signatures not necessary to the validity of Tearing off signatures the will, but recited in the attestation clause to have been recited to made, is sufficient to revoke the will. Price v. Price, 3 H. & have been N. 341; Lumbell v. Lumbell, 3 Hag. 568; Davies v. Davies, 1 Ca. t. Lee, 444; Williams v. Tyley, Johns. 530; In bonis Harris, 3 Sw. & T. 485. Where a portion of the will not necessary to its validity as a Destruction of portion of testamentary instrument is destroyed, the question is whether will the portion destroyed is so important as to raise the presumption that the rest cannot have been intended to stand without it, or whether it is unimportant and independent of the rest of the will. Clarke v. Scripps, 2 Rob. 563; In re White, 3 L. R. Ir. 413. Thus, the destruction of a clause at the commencement of a Chap. VI. Will in duplicate. Will not found. Evidence of will, or cutting out various legacies, or a clause appointing executors, will not revoke the rest. In bonis Woodward, 2 P. & D. 206; In bonis Nelson, I. R. 6 Eq. 569; In bonis Maley, 12 P. D. 134; In bonis Leach, 63 L. T. 111. On the other hand, where the middle pages only of a will were preserved, the whole was held to be revoked, though each page had been signed and attested. In bonis Gullan, 1 Sw. & T. 23; Gullan v. Grove, 26 B. 64; where the facts are badly stated. See Treloar v. Lean, 14 P. D. 49. A gift by deed of property disposed of by a prior will is not a revocation of the will, though it may make the will ineffectual. Ford v. De Pontes, 30 B. 572. Where a will is executed in duplicate, one of which the testator retains while he deposits the other in the custody of another person, the destruction of the duplicate in the testator's possession revokes the whole. Seymour's Case, Com. Rep. 453; 1 P. W. 346; 2 Vern. 742; Onions v. Tyrer, 1 P. W. 346 ; Burtenshaw v. Gilbert, Cowp. 49; Boughey v. Moreton, 2 Cas. t. Lee, 532; 3 Hag. 191; Rickards v. Mumford, 2 Phillim. 23; Colvin v. Fraser, 2 Hag. 266; see Payne v. Trappes, 1 Rob. 583. The same result follows if the duplicate in the testator's possession cannot be found at his death. Jones v. Harding, 58 L. T. 60. A will or codicil left in the testator's possession and not forthcoming at his death must, in the absence of evidence to the contrary, be presumed to have been revoked. Padmore v. Whatton, 3 Sw. & T. 449; In bonis Shaw, 1 Sw. & T. 62; Brown v. Brown, 8 E. & B. 876; Eckersley v. Platt, 1 P. & D. 281; Sugden v. Lord St. Leonards, 1 P. D. 154. But the contents of the will and the declarations of the testator down to his death are admissible in evidence for the purposes of rebutting this presumption. Patten v. Poulten, 6 W. R. 458; 1 Sw. & T. 55; Battyl v. Lyles, 4 Jur. N. S. 718; Finch v. Finch, 1 P. & D. 371; Whiteley v. King, 17 C. B. N. S. 756; Keen v. Keen, 3 P. & D. 105; Sugden v. Lord St. Leonards, 1 P. D. 154. Where a will, shown not to have been revoked, cannot be Chap. VI. found at the testator's death, or has been lost or destroyed after his death but before probate, evidence is admissible to prove its contents of contents. Brown v. Brown, 8 E. & B. 876; In bonis Barber, 1 P. & D. 267; Burls v. Burls, ib. 472; In bonis Leigh, (1892) P. 82. And for this purpose the declarations, written or oral, of the testator, made before the execution of the will, may be admitted. Doe d. Shalcross v. Palmer, 16 Q. B. 747; Quick v. Quick, 3 Sw. & T. 442; Johnson v. Lyford, 1 P. & D. 546; Sugden v. Lord St. Leonards, 1 P. D. 154. It is doubtful whether they may be admitted if made after the execution of the will. Woodward v. Goulstone, 11 App. C. 469. The contents of the will may be established by the evidence of a single interested witness whose veracity and competency are unimpeached. Sugden v. Lord St. Leonards, 1 P. D. 154 ; see Flood v. Russell, 29 L. R. Ir. 91. Where it is impossible to ascertain the whole contents of the will, effect will be given to such portions as can be ascertained, if the court is satisfied that they substantially represent the intention of the testator. Sugden v. Lord St. Leonards, 1 P. D. 154; Dickinson v. Stidolph, 11 C. B. N. S. 341; Woodward v. Goulstone, 11 App. C. 469. lost will. CHAPTER VII. Chap. VII. Soldiers and sailors excepted from Statute of Frauds as regards wills of movables. Exception Wills Act. WILLS OF SOLDIERS AND SEAMEN. THE Statute of Frauds (29 Car. II. c. 3), sect. 23, provides that, notwithstanding that Act, any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his movables, wages, and personal estate as he or they might have done before the making of the Act. The Wills Act (1 Vict. c. 26), sect. 11, enacts that any soldier continued by being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate as he might have done before the making of the Act. The Navy and (Wills) Act, Interpreta tion of terms. Will made before entry ineffectual as to wages, &c. Will invalid By the Navy and Marines (Wills) Act, 1865 (28 & 29 Vict. c. 72), it is provided : 2. In this Act The term seaman or marine' means a petty officer or seaman, non-commissioned officer of marines or marine, or other person forming part in any capacity of the complement of any of Her Majesty's vessels, or otherwise belonging to Her Majesty's naval or marine force, exclusive of commissioned, warrant, and subordinate officers, and assistant engineers, and of kroomen. 3. A will made after the commencement of this act by any person at any time previously to his entering into service as a seaman or marine shall not be valid to pass any wages, prize money, bounty money, grant, or other allowance in the nature thereof, or other money payable by the Admiralty, or any effects or money in charge of the Admiralty. 4. A will made after the commencement of this Act by any with power of person while serving as a seaman or marine shall not be valid if combined attorney. for 5. A will made after the commencement of this Act by any person while serving as a seaman or marine, or when he has ceased so to serve, shall not be valid to pass any wages, prize money, bounty money, grant, or other allowance in the nature thereof, or other money payable by the Admiralty, or any effects or money in charge of the Admiralty, unless it is made in conformity with the following provisions : (1.) Every such will shall be in writing and be executed with the formalities required by the law of England in the case of persons not being soldiers in actual (2.) Where the will is made on board one of Her Majesty's (3.) Where the will is made elsewhere than on board one of Her Majesty's ships, one of the two requisite attesting A will made in conformity with the foregoing provisions shall, as regards such wages, money, or effects, be deemed to be well made for the purpose of being admitted to probate in England; and the person taking out representation to the testator under such will shall exclusively be deemed the testator's representative with respect to such wages, money, or effects. 6. Notwithstanding anything in this or any other Act, a will made after the commencement of this Act by a seaman or T.W. E Chap. VII. Regulations seamen, &c., for wills of as to wages, &c. As to wills made by prisoners of war. |