London, where the testator also resided. After the death of the testator all the testamentary papers or schedules were found lying all in loose and separate papers, upon a table in his closet, not signed or executed, and the duplicate of the first Will was found on the same table, altered and obliterated (ut supra) with his name and seal thereto, whole and uncancelled. In the Prerogative Court sentence was given for the duplicate of the first Will in the executor's hands and upon appeal to the Delegates the sentence was confirmed by Lord Raymond, Mr. Justice Probyn, Dr. Tyndall, and Dr. Brampton. A commission of review was afterwards applied for and obtained: and after further hearing, &c., before the commissioners of review, the former sentence of the Prerogative Court was again affirmed by all the Delegates, except Dr. Pinfold, viz., by Reynolds, C. B., Page, J., and Comyns, B., and two doctors of the civil law, chiefly on the reason that the testator did not intend an intestacy; and by the alterations and obliterations in his own duplicate of the first Will, he appeared only to design a new Will, which, as he never perfected, the first ought to stand; and his not calling for the duplicate in the executor's hands, strengthened the presumption of his intent, not absolutely to destroy his first Will till he perfected another, which he never did.

In the case of Winsor v. Pratt (t), the testator, in July, 1812, made his Will, by which he devised certain real estates to his wife for life, and on her death to her mother, and on the death of his wife and her mother to his executors, in fee upon certain trusts. In November, 1816, he made various interlineations and obliterations, the effect of which, as regarded his real estate, was, to confine the first devise to his wife for her widowhood, and to strike out the devise to her mother. The original date was struck out, and day of Nov. 1816, was substituted. The Will was never resigned, republished, or re-attested, but in

(t) 2 Brod. & Bing. 650, S. C. 5 Moore, 481.

the following month the testator caused a fair copy to be made, and added one interlineation not affecting his real estate, but the copy was never signed, attested, or published: and in Dec. 1816, the testator died. The Court of Common Pleas were of opinion, that, under such circumstances, the interlineations and obliterations were inoperative, and that there was no revocation of the Will as it originally stood: And Dallas, C. J., in giving his judgment observed: "The effect of cancelling depends upon the validity of the second Will, and ought to be taken as one act done at the same time; so that if the second Will is not valid, the cancelling of the first being dependent thereon, ought to be looked upon as null and inoperative."

In a modern case in the Prerogative Court, an executor, having, in pencil, altered a Will, (by the direction of the testator, who approved of it when so altered), and then cancelled it, only in order that another might be drawn up, the preparation of which was prevented by the death of the testator, Sir John Nicholl held, that such cancellation, being preparatory to the deceased making a new Will, and conditional only, was not a revocation (u).

Further examples may be adduced with respect to obliteration. As where lands were duly devised to two trustees upon trust for certain purposes, and afterwards the testator struck out the name of one of the trustees, and inserted the names of two others, leaving the purposes of the trust unaltered, though varying in certain particulars, and did not republish his Will, it was adjudged, that the testator's 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 proper requisites of the Statute of Frauds, it should not operate a revocation (x). So in a later case (y), a testator made his Will, duly. exe

(u) In the goods of Applebee, 1 Hagg. 143. See also In the goods of De Bode, 5 Notes of Cas. 189. Accord,

(x) Short v. Smith, 4 East, 419.

(y) Kirke v. Kirke, 4 Russ. Chanc. Ca. 435.

cuted and attested so as to pass real estates, by which he gave to his younger sons 4000l. each, and to his daughters 30001. each, payable exclusively out of his real estates; he afterwards obliterated 'four' and three,' and wrote over them 'three' and 'one;' but the Will was not re-executed or republished; he subsequently made a codicil, signed by him, but not executed or attested so as to pass real estates, by which he reduced the portions given to the younger sons and daughters, according to the alterations in the Will: The younger sons and daughters were held to be entitled to the portions originally given to them by the Will, on the ground that the testator, by the obliterations and interlineations, did not intend revocation, but a substitution which proved ineffectual (z).

Cancellation under the influence of a mistake in point of law, seems to be equally inoperative to revoke, as if made under a mistake of fact. "If a man," said Lord Ellenborough, in the case of Perrott v. Perrott (a), "cancel his Will under a mistake in point of fact, that he has completed another, when he really has not, as was the case in Hyde v. Hyde, the cancellation is void: and if he cancel it, under a mistake in law, that a second Will (complete as to the execution) operates upon the property contained in the first, when from some clerical rule it really does not; shall this be deemed a valid cancellation?"

ciple of the

The general principle of the above cases was laid down General prin by Lord Alvanley in Ex parte Lord Ilchester (b), as com- cases. pletely established, that, where it is evident that the testator, though using the means of revocation, could not intend it for any other purpose than to give effect to another disposi tion, though, if it had been a mere revocation, it would have had effect, yet, the object being only to make way for another disposition, if the instrument cannot have that effect, it shall not be a revocation (c).

(z) See also Locke v. James, 11 M. & W. 901. Accord.

(a) 14 East, 440.

(b) 7 Ves. 372.

(c) See also the same rule laid down by Sir Wm. Grant in the same case, 7 Ves. 279.

The rule differs

fails by inca

In connection with this principle, it has been established (as will hereafter fully appear) (d), that a subsequent Will made under the impulse of a mistaken notion of facts will not revoke a former one.

But where the second disposition fails for want of when the gift capacity in the legatee to take, it appears to be established (though it has been thought difficult to make a satisfactory distinction) that the revocation will be effectual (e).

pacity of the legatee.

When a destruction or mutilation of the Will is a revocation of the codicil.

Duplicate
Wills:

presumption

that the de struction or mutilation of one revokes

the other.

A codicil is, primú facie, dependent on the Will; and the destruction or mutilation of the Will is an implied revocation of the codicil (f). But there have been cases, where the codicil has appeared so independent of, and unconnected with, the Will, that, under the circumstances, the codicil has been established, though the Will has been held invalid. It is a question altogether of intention. Consequently the legal presumption in this case may be repelled, namely, by showing that the testator intended the codicil to operate, notwithstanding the revocation of the Will (g).

If a Will be executed in duplicate, and the testator keeps one part himself, and deposits the other with some other person; and the testator mutilates or destroys the part in his own custody, it is a revocation of both (h). The presumption of law in such case, liable of course to be rebutted by evidence, is, that the destruction or mutilation of the one duplicate was done animo revocandi as to both (i).

(d) Post, p. 149.

(e) Tupper v. Tupper, 1 Kay & J. 665.

(f) Coppin r. Dillon, 4 Hagg. 361.

(g) Barrow v. Barrow, 2 Cas. temp. Lee, 335. Medlycott Assheton, 2 Add. 231. Tagart . Hooper, 1 Curt. 289. In the goods of Halliwell, 4 Notes of Cas. 400. Clogstoun . Walcott, 5 Notes of Cas. 623.

(h) Sir Edw. Seymour's case, cited Com. Rep. 453. S. C. 1 P. Wms. 346. 2 Vern. 742. Onions

v. Tyrer, 1 P. Wms. 346. Burtenshawv. Gilbert, Cowp. 49. Boughey v. Moreton, 2 Cas. temp. Lee, 532. S. C. 3 Hagg. 191. Rickards v. Mumford, 2 Phillim. 23. Colvin v. Fraser, 2 Hagg. 266.

(i) Swinburne seems to have been of opinion, that it lay on the party relying on the revocation to prove the animus, otherwise the cancellation of one duplicate would not affect the other: See Pt. 7, s. 16, pl. 4: But the modern authorities cited in the preceding note, have now settled that the animus is to.

And in Pemberton v. Pemberton (j), Lord Chancellor Erskine laid down that the same presumption holds, though in a much weaker degree, where both the instruments are in the testator's possession: And further, that in a third case, where the testator, having both duplicates in his possession, alters one, and then destroys that which he has altered, there also the same presumption holds, though weaker still ().

But in Roberts v. Round (1), the testatrix executed her Will in duplicate in the year 1814: The Will was kept by her, and the duplicate immediately after execution was left with her solicitor, who retained possession of it till the year 1827, when he delivered it to her, at her request: On her decease, in the year 1830, the Will and duplicate were found in her portfolio, which was on her bed at the time of her death: The Will was enclosed in an envelope, endorsed in her handwriting, "My Will, dated the 11th of April, 1814," and with the word "mine" written by her in pencil on the outer sheet of the Will: The duplicate had been mutilated by cutting out the names of several of the devisees: And Sir John Nicholl held that such mutilation was neither a total or partial revocation: The learned judge, in pronouncing his judgment, made the following observations: "What, upon the face of the instrument, are the sound legal construction and presumptions? Suppose that the mutilated instrument alone had been found, and that no duplicate had

be presumed, till the contrary is proved. As to the presumption, when a testator destroys a duplicate in the possession of his solicitor, and preserves that in his own custody, see Payne v. Trappes, 1 Robert. 583, 591.

(j) 13 Ves. 310. And in that case it also appears that Lord Ellenborough and Sir James Mansfield had each, in charging juries, stated the law to this effect.

(k) It was urged by counsel in the course of the argument, that

in this third case, as soon as one part has been altered, the two parts cease to be duplicates, and the altered one then becomes a new Will of the latest date, and revokes all others. If that were so, upon the destruction of the altered Will, the question would seem to resolve itself into the point whether the prior, uncancelled, unaltered one, is revived by the destruction of the later altered one. As to which see the next section.

(7) 3 Hagg, 548.