« SebelumnyaLanjutkan »
By the clause respecting revocations, the subscription of the witnesses is not expressly directed, while, on the other hand, the signing by the testator in the presence of the witnesses, is possitively prescribed. The clause runs as follows: “ And moreover, no devise in writing of lands, tenements, or hereditaments, nor any clause thereof, shall at any time, after the said four-and-twentieth day of June, 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 the same, by the testator himself, or in his presence, and by his directions and consent; but all devises and bequests of lands and tenements, shall remain and continue in force, until the same be burnt, cancelled, torn, or obliterated by the testator, or his directions in manner aforesaid, 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; any former law or usage to the contrary notwithstanding."
It may reasonably be inferred to have been the of the gramma
tical reading of intention of the legislature, to impose the same the language of obligation a; to the formalities of execution, on all whereby it is wills properly so called, whether original or coming agreement with in the place of others antecedently made. The con- of tac preceding struction, therefore, which has been put upon the language of the revocation clause, has brought the two
sections into equality in this respect, and thus imparted consistency and simplicity to the scheme of the statutory restrictions upon the execution of wills. In conformity to this plan of construction, as it had been judged a sufficient compliance with the requisitions of the fifth clause, if the testator acknowledged his signing, without actually executing it in the presence of the witnesses, it became important so to read the sixth section, which requires signing in the presence of the witnesses, as to bring it into agreement with the preceding section. The courts, therefore, have read the concluding words of the sixth section, will, or codicil, or any other writing, signed in the presence of three witnesses, so as to detach the words “ will or codicil” from the succeeding words,“ or any other writing,” coupling these last words with the words which immediately follow, viz. “ signed in the presence of three witnesses."
Of the legal Thus they have applied the requisition of a distinctions founded upon
signing in the presence of three witnesses,” to this construction. the proximum antecedens only,
other writing," and again coupling the succeeding words “ declaring the same” with the words immediately before it, have made therewith this complete sentence,“ or any other writing of the devisor, signed in the presence of three or four witnesses, declaring the same.” At the same time the words “ will or codicil” were understood to import a will or codicil executed and perfected according to the requisitions
of the foregoing section. Interpreting the language of the 6th clause, upon these principles of construction, the law which arises upon it is this; that a will or codicil, in order to revoke a former will, must be executed with the same solemnities as the original will, that is, it should be signed by the testator, or by his directions, and subscribed by three witnesses, in his presence. And if such subsequent writing, accompanied with all the formalities requisite to a perfect will of lands, under the 5th clause, make a fresh disposition of the property, inconsistent with the dispositions thereof by a former will, it is a plain revocation without any express declaration of intention to revoke. But if a writing, not duly attested according to the 5th section, contain an express declaration of intention to revoke, and furthermore, be actually signed in the presence of three or more witnesses, such instrument is an effectual revocation, and the witnesses need not, as in the case of a substantive disposing will, under the 5th section, subscribe their names to the instrument, in the presence of the testator,
* Ellis v. Smith, 1 Vez. jun. 11. Hoyle v. Clarke, 218.
Methods of Revocation (1).
THERE are two general heads under which all the smaller varieties on the subject of the revocation of wills may be included—revocations express, and revocations implied. A revocation may be said to be express, either when the testator, by a subsequent writing signed by him in the presence of three or more witnesses (2), declares a present intention (3)
(1) A man cannot make an irrevocable will, or bind himself so as to give up or take from himself this power of revocation, Swinb. p. 7. sect. 14.
(2). Though to revoke a will by an instrument of declaration according to the statute, such instrument must be signed in the presence of three witnesses, yet it has been held that it is enough if the witnesses sign, and it is not necessary that they should express in their attestation the fact of the signing by the testator in their presence, for their actual subscription is adopted only for the purpose of facilitating their recollection of the circumstance. 8 Via. Abr. tit. Devise, 142. pl. 3. And indeed it has been said there is no absolute necessity for the witnesses to the testator's sigoing to subscribe at all. Vin. Abr. tit. Dev. (R) 4 pl. 3. Townsend v. Pearce, per Eyre and Parker J.
(3) Vid. post. that the expression of an executory or future intention o revoke, does not operate as a revocation.
to revoke, according to the construction above considered, whereby the latter part of the 6th clause is disconnected from the words 'will and codicil;' or secondly, by a will executed with the solemnities required by the 5th section of the statute, viz. by the signature of the testator, and the subscription of three witnesses in his presence: which latter mode may, it should seem, be properly considered as an express revocation, because, if a man after having made a will of lands, makes another will inconsistent with the former, and gives to it the form of a substantive independent instrument, he may be said to have explicitly and expressly revoked the preceding will, since he has himself declared that the will last made is his will, at the time actually present, and by consequence that it is to take place of every different disposition of an earlier date ; or, thirdly, by cancelling, tearing, or obliterating such will by the testator himself, or by his direction or consent.
Under the 2nd general head may be classed, all those revocations which arise by the construction or inference of intention, which the law founds upon the collateral acts of a testator after making his will: and which are not within the reach of the statute of frauds.
It has been shewn, that according to the prevailing opinion, if an instrument be designed as a will, and is not made merely for the purpose of revoking a