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Bigelow v. Gillott.

ficiency; that acts or omissions on his part, which are prejudicial to the adult party's interests, or evince his own intention to retain the advantages of a contract, made during infancy may be, especially when reasonable time has elapsed, construed into a ratification — the presumption of honorable motives being fair and reasonable under such circumstances; and finally, that a distinct, unequivocal promise, verbal or written, made after attaining majority, is always sufficient, this apparently superseding the former promise altogether."

BIGELOW V. GILLOTT.

(123 Mass. 102.)

Revocation of part of will by obliteration.

Under a statute which provides that "no will shall be revoked, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself or by some person in his presence, or by his direction, or by some other will, codicil, or writing, signed, attested, and subscribed in the manner provided for making a will," held, that an erasure by a testator of certain clauses in his will, with the intention of revoking only those clauses, is a valid revocation of those clauses, but not of the whole will; and the property therein referred to passes under the residuary clause, in the absence of evidence of a contrary intention. (See note, p. 35.)

A

PPEAL from the decree of the Probate Court of Suffolk county admitting to probate a certain instrument, excepting the sixth and thirteenth clauses, as the last will and testament of Thomas Liversidge, deceased. The trial judge found that the will was duly executed; that after execution the testator drew ink lines across all the words in the sixth and thirteenth clauses, with the intention of revoking those clauses, and no more of the will. The will contained a general residuary clause. This finding on the facts, and the legal effect of such facts, were reserved for the full court.

L. S. Dabney, for executors.

H. A. Johnson, for appellant.

MORTON, J. The presiding justice who heard this case has found as facts, that the testator erased the sixth and thirteenth clauses of his will after its execution, and that such erasures were

Bigelow v. Gillott.

made with the intention of revoking the said clauses, but with no intention of revoking or defeating the other provisions of the will. These findings were clearly justified by the evidence. We need not consider the evidence in detail, as the appellants do not contend that the findings were erroneous; the only question raised by them. being as to the legal effect of such erasures.

The statute provides that "no will shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction; or by some other will, codicil or writing, signed, attested and subscribed, in the manner provided for making a will." Gen. Stats. ch. 82, § 11. This provision is a re-enactment of the Rev. Stats., ch. 62, § 9, with merely unimportant verbal changes. The Rev. Stats. made material changes in the law as to wills, doing away with the distinctions between wills affecting real, and wills affecting personal, property, and putting all upon the same footing. The Stat. of 1783, ch. 24, § 2, permitted the revocation of a devise of land, "or any clause thereof," in the manner pointed out in the statute, which was the same manner now provided for the revocation of a will.

We see nothing to indicate that the legislature, in the revision of 1836, intended to change the law in this respect and to limit the power or revocation to a revocation of the whole will. The power to revoke a will includes the power to revoke any part of it. If we were to hold that under this provision a testator could not revoke a part of a will by canceling or obliterating it, we should be obliged by the same rule of construction to hold that he could not revoke a part by a codicil, which would be against the uniform practice in this Commonwealth, sanctioned by numerous decisions.

We are, therefore, of opinion that, in this case, the cancellation by the testator of the sixth and thirteenth clauses of his will, by drawing lines through them, with the intention of revoking them, was a legal revocation of those clauses.

The remaining question is as to the effect of this revocation upon the property affected by the revoked clauses. The appellants contend that the property devised and bequeathed therein is to be treated as intestate property, which goes to the heirs at law or distributees; and the executors and trustees contend that it passes to them under the residuary clause of the will.

It is a clearly settled rule of law that, in a will of personal VOL. XXV-5

Bigelow v. Gillott.

property, a general residuary bequest carries to the residuary legatee all the personal property of the testator which is not otherwise disposed of by the will, including all lapsed legacies and all void legacies. And in this Commonwealth, since the passage of the Rev. Stats. in 1836, the same rule applies to wills of real estate. Thayer v. Wellington, 9 Allen, 283, and cases cited. It is true that if a special bequest in a will lapses or fails for any reason, the sum bequeathed will not pass to the residuary legatee if it appears from the will that it was the intention of the testator to exclude it from the residuary clause. In Thayer v. Wellington, ubi supra, the court say: "We take the rule to be that a general residuary clause passes all the estate of the testator not otherwise disposed of, unless it is manifestly contradictory to the declared purpose of the testator, as found in other parts of the will. There must be a clear intention that in no event it shall pass to the residuary devisee."

In this case there is nothing to indicate an intention on the part of the testator that the property covered by the revoked clauses should not go to the residuary devisees. The residuary clause is expressed in the broadest terms. "I give, bequeath and devise all the rest, residue and remainder of my estate of every description, of which I shall die seized and possessed." The intention of the testator is clear, to give all his property, not otherwise disposed of by the will, to the trustees named therein, for the support of the charity established by the nineteenth clause. He revoked the sixth and thirteenth clauses, and purposely and intelligently left the other provisions to stand as his will. The only fair inference is that he intended that the property covered by those clauses, and which by his revocation became undisposed of by the other clauses of the will, should fall within the residuary clause. We are of opinion that this case falls within the general rule, and that the property in question passes to the residuary devisees.

The argument of the appellants, that this view is in conflict with the provisions of law which require that a will disposing of property should be executed in the presence of three witnesses, is not sound. It is true that the act of revocation need not be done in the presence of witnesses; but such act does not dispose of the property. It is disposed of by the residuary clause, which is executed with all the formalities required in the execution of a testamentary disposition of property.

Decree of Probate Court affirmed.

Bigelow v. Gillott.

NOTE BY THe Reporter.-In Penniman's Will, 18 Am. Rep. 368; s. c., 20 Minn. 245, it was held in a well-considered opinion that, under a like statute with that of Massachusetts, obliterations and interlineations made by the testator with intent to change his will, would have no effect unless the will as so altered was re-attested, and that an attestation to "the erasures and interlineations" was not sufficient; and the same rule is held in Tennessee. Stover v. Kendall, 1 Cold. 557.

The Illinois statute provides that "No will, testament, or codicil shall be revoked, otherwise than by burning, canceling, tearing, or obliterating the same by the testator himself, or in his presence, by his direction and consent, or by some other will, testament, or codicil in writing, declaring the same, signed by the testator or testatrix, in the presence of two or more witnesses, and by them attested in his or her presence."

Under this statute it was held in Wolf v. Bollinger, 62 Ill. 368, where a testator attempted to change à devisee by erasing the name in the will and interlining another name, that the alteration was not effectual because the will was not duly attested after it was made, and that the original devisee took as if no change had been attempted.

But in Kentucky it is held otherwise, and that neither the changing of an executor, nor the striking out of a devisee, nor the translation of a devise, will amount to a revocation so as to require a republication of the will. Wells v. Wells, 4 T. B. Monr. 152; Brown's Will, 1 B. Monr. 57; Tudor v. Tudor, 17 id. 389. The New York statute provides that "no will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered * * * unless such will be burned, torn, canceled, obliterated or destroyed, with intent and for the purpose of destroying the same," and this was held by the Supreme Court, at General Term, in Quinn v. Quinn, 1T. & C. 437, to admit "of no revocation of an executed will by obliteration, except an entire obliteration with intent to revoke the whole will." In that case the testator altered his will after execution by erasing some legacies and directing others to go to other persons, and by a change of executors. It was held that the will as originally executed should be upheld.

Formerly in England a testator might make any alterations in his will which he pleased, and if the court was satisfied that such alterations contained the testator's final intentions, they were entitled to probate. Ravenscroft v. Hunter, 2 Hagg. 68; Mence v. Mence, 18 Ves. 348. But under the present Wills Act (1 Vict., ch. 26, § 21), which provides that no obliteration, interlineation, or other alteration, made after the execution, shall be valid or have any effect (except so far as the words or effect of the will before such alteration shall not be apparent) unless such alterations shall be executed in like manner as is required for the execution of wills - it is held that any interlineatious, obliterations, or other alterations, must be duly attested as is required for wills except that such attestation may be limited to the alterations. 1 Williams on Ex. 144. In the absence of statutory provisions to the contrary, the cancellation or obliteration of a portion of the devises in a will, leaving it otherwise complete, with an intention, by the testator, to annul only what was canceled, leaves the residue a valid will. Clarke v. Scripps, 2 Roberts. 563; Goods of Woodward, L. R., 2 Prob. L. Div. 206; Bradford's Will, 1 Parson, 165; Borden v. Borden, 2 R. I. 94; Overall v. Overall, Litt. Sel. Cas. 504; Tudor v. Tudor, 17 B. Monr. 383; Means v. Moore, 1 Harp. 314; In re Kirkpatrick, 22 N. J. Eq. 463. Thus in the case last cited, the testator canceled two legacies by lines drawn through them with a pen, accompanied by a marginal memorandum signed by him, stating

that he wished to "erase tanto.

Bigelow v. Gillott.

these parts, was held an effectual revocation pro

In Wright v. Wright, 5 Ind. 389, a testator inserted in his will, which had been previously executed, an additional bequest, which insertion was made in the presence of the original witnesses, and it was held that this bequest became a part of the original will.

In Dixon's Appeal, 55 Penn. St. 424, a testator, after the due execution of his will, procured the scrivener to alter certain legacies by an erasure and interlineation, and to change the date of the will to the date of alteration, and thereupon he acknowledged his former signature in the presence of the witnesses to the will. This was held not to be a revocation.

Acts of revocation, such as cancellation, obliteration and the like, are only prima facie evidence of an intent to revoke, and evidence is admissible to show with what intent the acts were done; but parol evidence of intent, independent of acts, is not admissible. Clark v. Smith, 34 Barb. 140; Wolf v. Bollinger, 62 Ill. 358; Boudinot v. Bradford, 2 Yeates, 170; Eyster v. Young, 3 id. 511; Means v. Moore. 3 McCord, 282; Hargroves v. Redd, 43 Ga. 142; Kent v. Mahaffey, 10 Ohio St. 204.

In Clark v. Smith, supra, a testator having an only son, James W. Smith, devised certain real estate to his son James W. Smith." Afterward he erased the words "James W. Smith," leaving the word son uncanceled; and it was held that neither the will nor the devise to James W. Smith was revoked, and that evidence of the testator's intention to revoke the devise was properly rejected on the ground that "the intention of a testator to cancel or revoke a elause in his will, however strongly declared, is of no consequence, unless it be carried out by some act amounting in judgment of law to an actual cancellation or revocation." And see Wikoff's Appeal, 15 Penn. St. 281; Grantley v. Garthwaite, 2 Russ. 93.

Canceling and obliterating have always been considered peculiarly equivocal acts which, in order to operate a revocation, must be done with intention to revoke. Smith v. Cunningham, 1 Add. 455; Dan v. Brown, 4 Cow. 490.

And while the presumption of law, prima facie, is that such acts are done animo revocandi, such presumption may be rebutted. Wolf v. Bollinger, 62 111. 368; Dawson v. Smith, 3 Houst. 335.

The drawing of lines across a will may be explained by circumstances not to have been intended as a revocation. Bethell v. Moore, 2 Dev. & Bat. 316; Lewis v. Lewis, 2 W. & S. 455.

The burden of proof that a will has been revoked, either in whole or in part, is upon the party who alleges the revocation. Sprigge v. Sprigge, L. R., 1 Prob. & Div. 608; Benson v. Benson, 23 L. T. Rep. 709; s. c., L. R., 2 Prob. & Div. 172; Harris v. Berrall, 1 Sw. & Tr. 155. In the latter case the court said: "If it is once proved that a will has been duly executed, I hold that it is entitled to probate, unless it is shown that it has been revoked by one of the modes pointed sut by the statute; and I am of opinion that the burden of showing that it has been so revoked lies upon the party who sets up the revocation."

An insane person can have no intention and cannot, therefore, alter a will already duly executed. Forman's Will, 54 Barb. 274; Smith v. Wait, 4 id. 28; Rhodes v. Vinson, 9 Gill, 169; Ford v. Ford, 7 Humph. 92. And the burden is also on one alleging an alteration or revocation of proving that it was made when the testator was of sound mind. Harris v. Berrall ; Benson v. Benson, supra.

In re Wilson, 8 Wis. 171, it was held that if, upon inspection of a will, it

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