what shall amount to a revocatory act of destruction, if done before Jan. 1, 1838 internal evidence to the contrary, in which case the codicil, being a republication of the Will, would republish the Will with the alterations (r). But if the Will is dated before the 1st of Jan. 1838, the point does not appear to be yet settled, whether the presumption is that they were made before or after the Act came into operation; for though they must be taken to have been made after the execution of the Will, it does not follow that they were made on or after Jan. 1st, 1838 (s). It may be observed that in the instance of an unattested Will without date, where the case is bare of circumstances from which the time when it was made may be inferred, it has been held that the presumption is that it was made before the Act came into operation (t). With respect to what shall amount to an act of destruction, if done before January 1, 1838, sufficient to operate as a total revocation :-If the testator has torn off or effaced his seal and signature at the end of a Will, the Court will infer an intention to revoke the whole Will, this being (until the passing of the new statute) the ordinary mode of performing that operation (u). Again, where lines were drawn over the name of the testator, this was held to amount to a revocation by cancellation (x). So tearing off the seal only of a Will, where the attestation clause declares it was signed and sealed, has been held a cancellation (y) And the principle appears to have been established, that if the intention to revoke was apparent, an act of destruction or cancellation should carry such intention into effect, although not literally an effectual destruction or cancellation, provided the testator had completed all he designed to do for that purpose. Thus (r) Lushington v. Onslow, 6 Notes of Cas. 183. In the goods of Bradley, 5 Notes of Cas. 186. (s) See In the goods of Pennington, 1 Notes of Cas. 399. Wynn v. Heveringham, 1 Coll. 630. (t) Pechell v. Jenkinson, 2 Curt. 273, ante, p. 59, 60. (u) Scruby v. Fordham, 1 Add. 78. (x) Slade v. Friend, cited by Sir G. Lee, 2 Cas. temp. Lee, 34. (y) Lumbell v. Lumbell, 3 Hagg. 568. See also Davies v. Davies, 1 Cas. temp. Lee, 444. in a case decided in the Prerogative Court, (afterwards taken up on appeal to the Delegates, where the decisions below. were confirmed,) a Will was found in the repositories of the deceased, and it appeared that some one had carefully cut out, apparently with scissors, the whole of the instrument from its marginal frame; the attestation clause was also cut through, but no part of the writing; and it was held, that the Court was bound to construe the act as one done by the testatrix for the purpose of cancelling, revoking, or destroying the validity of the instrument, and consequently that it was thereby revoked (2). With respect to the acts of destruction or cancellation done if done after Jan. 1, 1838. after the new Act came into operation: It will be observed, that the words "cancelling" and "obliterating," which occur in the Statute of Frauds, are omitted in the 20th section of the new Statute of Wills, and that the words " otherwise destroying," are substituted. It has been considered that these latter words mean modes of destruction ejusdem generis, as cutting, throwing into the water, or the like, and, therefore, exclude cancelling (a). And it has been argued, that a still narrower construction ought to prevail, viz. that a revocation of a Will under the new law, by any mode short of (z) Moore v. Moore, 1 Phillim. 357. See Grantley v. Garthwaite, 2 Russ. Chanc. Rep. 90, for an instance of erasure which does not amount to a cancellation. See also Martins v. Gardiner, 8 Sim. 73. (a) Sugden's Essay, p. 46. And accordingly, it was held by Sir H. Jenner Fust, in Stephens v. Taprell, 2 Curt. 458, that cancellation by striking through with a pen was not a revocation under the new statute. So it was held by the same judge on motion that the testator had not revoked his Will by striking a line through his signature, animo revocandi: In the goods of Rose, Prerog. E. T. 1845, 4 Notes of Cas. 101. See also In the goods of De Bode, 5 Notes of actual destruction or annihilation, can only be by burning or tearing. In Hobbs v. Knight (b), the deceased died on the 7th of March, 1838: The day after his death, a Will was found in the drawer of his writing desk, dated 19th of January, 1835, and which had apparently been signed by him, (two witnesses having signed an attestation clause reciting his signature,) but the signature had been cut out by a knife or scissors: The allegation pleaded, that the Will remained entire until after January 1, 1838: It was admitted that the act of excision was done by the testator, and the legal inference seems not to have been disputed, viz. that it was done animo revocandi: But it was contended that the excision of the name of the testator was not a sufficient revocation under the new statute, which, it was said, had advisedly departed from the terms used by the Statute of Frauds, by prescribing as the modes of revoking a Will, "burning, tearing, or otherwise destroying the same," omitting "cancelling," and " obliterating," and inserting, "otherwise destroying: " And it was urged, that as the Act must be construed strictly, cutting out the name was not one of the modes of revocation: It was only a demonstration of an intention to revoke: But Sir Herbert Jenner Fust held, that the excision of the name of the testator amounted to a revocation of the Will under the terms "otherwise destroying;" and that it was not necessary, in order to operate a revocation, that the whole instrument should be destroyed; it was sufficient if the entirety or essence of the thing were destroyed: In the present case, the name of the testator, an essential part of the Will, had been removed: And the learned judge proceeded to state that the inclination of his opinion was, upon the same principle, that a testator might revoke his Will by obliterating his signature to it, if the obliteration amounted to a destruction; if the testator had so carefully obliterated it that it was perfectly illegible: And further, by parity of reasoning, that if the names of the attesting witnesses were taken away by the testator animo revocandi, it (b) Prerog. May 29, 1838. 1 Curt. 768. would be a good destruction of the Will under the Act: The learned judge likewise observed, that if the signature had been burnt or torn out, that would be clearly sufficient to revoke; and that if it were necessary to determine the point, he thought it would not be difficult to hold, that cutting is equivalent to tearing. This decision was cited by Sir John Dodson in Clarke v. Scripps (c): And that learned judge said, that he quite agreed with Sir H. J. Fust that cutting and tearing are equivalent acts (d). It was held, in the construction of the Statute of Frauds, that in order to operate a revocation of a Will, it was not necessary that the instrument itself should be consumed or torn to pieces: In the case of Bibb v. Thomas (e), it appeared in evidence that the testator ordered his Will, which he had previously duly executed, to be brought to him; after opening it and looking at it, he gave it a "rip" with his hands, so as almost to tear a bit off; then rumpled it together, and threw it upon the fire, but it fell off; that it must soon have been burnt, had not one Mary Wilson, who was present, taken it up, and put it in her pocket; that the testator did. not see her take it up, but seemed to have some suspicion of it, and he asked her what she was at, to which she made little or no answer; that the testator at several times afterwards said, that was not and should not be his Will, and bid her destroy it; that she said at first, "So I will, when you have made another;" but afterwards, upon his repeated inquiries, she told him that she had destroyed it, though in fact it was never destroyed; that she believed he imagined that it was destroyed; that she asked him to whom his estate would go when the Will was burnt; he answered, to his sister (c) 2 Rob. 563, 570, 575. (d) Where, however, the Will was found with the testator's original signature erased, but another signature appeared at a short distance beneath, Dr. Lushington held, on the facts and circumstances deposed to, that the original signa ture had not been erased animo revocandi as required by the new Wills' Act, and that in the probate the original signature must be restored, and the second omitted: In the goods of King, 2 Robert. 403. (e) 2 W. Black. 1043. and her children; that he afterwards told a person that he had destroyed his Will, and should make no other until he had seen his brother, and desired the person would tell his brother so, and that he wanted to see him; that he afterwards wrote to his brother, saying, "I have destroyed my Will which I made; for, upon serious consideration, I was not easy in my mind about that Will," and desired him to come down, saying, "If I die intestate, it will cause uneasiness: " The testator, however, died without making another Will: The jury, with the concurrence of the judge, thought this a sufficient revocation of the Will; and of this opinion was Lord C. J. De Grey, and the whole Court, on a motion for a new trial; the Chief Justice observing, that this case fell within two of the specific acts described by the Statute of Frauds; it was both a burning and a tearing; and that throwing it on the fire, with an intent to burn, though it was only very slightly singed and fell off, was sufficient within the statute. It was decided, however, that there must be an actua burning of the Will to some extent, in order to effect a revocation of this nature; and that an intention and attempt to burn was insufficient. Thus, in Doe v. Harris (f), a testator, intending to destroy a Will, threw it on the fire; but a devisee under the Will snatched it off, against the wishes of the testator and took it away, a corner of the envelope only being burnt, and no part of the Will itself having been affected by the fire: The testator afterwards insisted on its being thrown on the fire again, with intent that it should be burnt, and the devisee then promised to burn it, but did not do so: It was held by the Court of Queen's Bench, that the Will so far as it related to freehold property, was not revoked; because there was no burning of the Will itself to satisfy the Statute of Frauds; and no evidence whatever of what was said, proving an intention to revoke, could supply that deficiency. The same Court, however, after (f) 6 A. & E. 209. S. C. 2 Nev. & P. 615. |