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erasure— altera. ration, since the latter if it consists in making any sion being a fresh exercise of new gift or disposition, is to that extent another power requires devise, and will clearly require the will to be rere-executed, to executed according to the statute (1). The case of alteration, if of Larkins v. Larkins was in effect as follows: frechold estate.
William Larkins by his last will, duly executed, devised his lands in M. to his brother, John Pascall Larkins, Samuel Enderby the younger, of Aldermanbury, in the city of London, Esquire, and George Smith, of Lincoln's Inn, in the county of Middlesex, Esquire, their heirs and assigns, upon trust, to sell the same lands for the purposes in the will mentioned. He also gave the residue of his estate and effects to the same persons, and appointed them his executors and the guardians of his daughters. After this will was executed, the testator, with his own hand, made the following alterations: in the first devise to the three trustees, the words “ the younger" and “George Smith, of Lincoln's Inn, in the county of Middlesex, Esquire,” were struck out by a pen drawn through them; in the bequest of the residue, the words " the younger" and “ George Smith, their heirs, executors," were struck out, but over the words
heirs, executors,“ was written the word ' stet;” in the clause appointing guardians, the words “ the
(1) In respect to a will of personalty only, the course is to have a sentence against the erasure, and then a probate granted with the word erased inserted therein. 1 Vera. 257, Parker v. Ashe.
younger” and “
George Smith” were struck out; and lastly, in the clause appointing executors, the words “ the younger” and “ George Smith” were struck out. The testator never in any manner re-executed or re-published his will after making the above-mentioned alterations. And the question was, whether the devise of the real estate to be sold was revoked, by the testator's having struck out the name of George Smith, one of the trustees, after the execution of the will.
The ground upon which it was contended that it was revoked was mainly this, that after devising the same estate to two persons, by revoking that devise as to one, the testator had necessarily altered the estate of the other by enlarging it; and that if it could operate at all, it must operate as a new gift, for whatever alters either the quantity or quality of the estate of the devisee must be considered as a new devise. This position however, in which the strength of the argument for the total revocation consisted, was positively denied by the court, by whom it was observed, that in a court of law the trustees must be considered as joint-tenants in fee; that whatever alteration in the interest of the other trustee was created by this erasure, it was an alteration not arising from a new gift, but merely from a revocation. But Mr. Justice Chambre put the point thus: the devisees being joint-tenants are seised per my et per tout; and if one joint-tenant die in the life-time of the testator, the other joint-tenant, takes the whole
of the estate, though it never vested in him during the life of the testator, the reason of which is that the original devise is sufficient to pass the whole interest. Had this been the case of a tenancy in common, upon the erasure of one name, the remaining two would take no more than the two thirds of the estate (2).
An erasure of a part of a will, therefore, does not necessarily operate as a revocation of the whole. And it is always to be recollected that the statute of frauds gave no new or positive efficacy to these symbolical modes of revoking a will, but left them upon the same footing as they stood at common law".
Short on the demise of Gastrell v. Smith, which
• See Carthew. 81.
(2) Mr. Justice Chambre seems to have put the decision of this case upon
its safe ground, viz. that the will was not altered by the erasure, as it was made to carry no more than it was originally framed to carry, since each joint-lenant takes the whole estate. But it would seem unsafe to infer from this case that if an erasure added to the quantity of interest carried by the will, such will would not require a fresh execution; as, suppose the words for and during his life,' after a gift by a testator of all his freehold estates to B., to be erased, thus converting an estate for life, into a fee. And even if it only changed the quality, still if it thereby altered the estate, it would seem to be a fresh exercise of the disposing power, and to require a fresh execution ; as, if after a gift to two and their heirs, the words equally to be divided between them were to be struck out, this would not be merely a revocation but an altered devise.
was determined a few years ago in the Court of King's Bench, was the case of an erasure of the name of one of the trustees, accompanied by the additional fact of the substitution of others in his place. There a testator devised lands to two trustees, in trust for certain purposes, by a will duly executed and attested; and he afterwards struck out the name of one of those trustees and inserted the names of two others. The will was not afterwards republished, but the court held that his intent appearing to be only to revoke, by the substitution of another good devise to other trustees, as such new devise could not take effect for want of the due execution of such altered will under the statute, it should not operate as a revocation, or at most it could only operate as a revocation pro tanto, as to the trustee whose name was obliterated. Here it was said, in support of the revocation, that the insertion of the two new trustees in the room of the one whose name was obliterated, distinguished this case materially from those of Larkins v. Larkins, and Humphries v. Taylor"; because it manifested the devisor's intent, that the remaining old trustee should not take alone.
But the court observed, that the facts of the case plainly shewed that the testator had no object but to change his trustees; and it would be unreasonable when he had not by any thing he had done indicated a disposition to dispose of his lands to different purposes from those declared by his will, to infer that he designed that his will should become inoperative, and so to let in his heir at law by what he did, rather than to conclude, that he thought he had by the alterations introduced made a valid disposition of his estate to the new trustees, and had no design to alter his will except so far as such obliteration and alteration could effectuate that purpose, by substituting the persons whose names he interlined in the stead of him whose name was struck out. If, then, the testator meant no revocation but by means of that, which he through mistake supposed to be a valid disposition to others, and had no intention to revoke by the obliteration he has made, but by an effectual substitution meant to be made of others in the room of him whose name was so obliterated, the case must be governed by that of Onyons v. Tyrer.
64 East. 419.
& 5 Bac, Abr. tit. Wills and Test. 369. Edit. Gwyllin.
But supposing the obliteration of the name of the one trustee to have revoked the devise as to him, still the heir would not be let in, for it might be still contended that the effect of the obliteration in this case was at most to revoke only the devise to that trustee, whose name was struck out, and therefore giving to that obliteration its full effect, it would still leave the devise to the other trustee in full force,