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Generally speaking, where a Will contains a general rero. Effect of a
general revoca. catory clause, it operates a revocation of all prior testamentary tory clause in acts. But there has already been occasion to point out (e),
a Will. that probate may be granted of a paper of a date prior to such a Will, provided the Court is satisfied that it was not the intention of the deceased to revoke the particular legacy which is the subject of the earlier paper.
Revocation by the Republication of a Prior Will.
If a man make a Will, and at a future period republish it, such republication will revoke any Will intermediate to the original date of the prior Will, and if its republication (f). But this subject will be more conveniently discussed hereafter, when the doctrine of republication, generally, is considered (g).
Revocation by Marriage or other change of Circumstances,
and therewith of Presumptive or Implied Revocation.
The different methods of expressly revoking a Will having been now considered, it remains to treat of presumed or implied revocation.
It is enacted by the new Statute of Wills, (1 Vict. c. 26, 1 Vict. c. 26, s. 19) that "no Will shall be revoked by any presumption of $119.; no Will an intention on the ground of an alteration in circumstances." 1838, to be
revoked by The general rule has been, from the earliest periods of presumption. the Ecclesiastical law, in accordance with this enactment, that a Will once executed remains in force, unless revoked
(e) Ante, p. 142.
(f) Rogers v. Pittis, 1 Add. 38. Jansen v. Jansen, ibid. 39. Wal
pole r'. Lord Cholmondely, 7 T. R.
(9) Post, Pt. 1. Bk. 11. Ch. iv.
by some act done by the testator, animo revocandi : such as burning, cancelling, making a new Will, or the like. “No man,” says Swinburne (h), "is presumed to have revoked his testament once made, unless it be proved; insomuch that if a man do live by the space of forty years after he have made his testament, yet is not the testament presumed to be revoked by the course of so long time. And albeit, during the same time his wealth and substance do greatly increase, yet is not the testament presumed to be revoked. And albeit the testament be in prejudice of such as otherwise were to have the administration of the goods of the deceased; yet all those things occurring, viz., the long time, the increase of the testator's wealth and the prejudice of such as are to have the administration of the testator's goods, the testament is not presumed to be revoked. And albeit the testament be made in time of sickness, and peril of death, when the testator doth not hope for life, and afterwards the testator recover his health, yet is not the testament revoked by such recovery: or albeit the testator make his testament by reason of some great journey, yet it is not revoked by the return of the testator (i).
Again, it has never been held, that the removal by death of the object of the testator's bounty and affection, could operate as a revocation of the Will: on the contrary, it was decided in the modern case of Doe v. Edlin (k), where a testator devised lands to a trustee in fee, in trust to receive and apply the proceeds to the use of the sister of the testator, being a married woman, for life, for her separate use, and from and immediately after her death, to convey the same to such uses as she should by deed or Will appoint, that the death of the sister in the testator's lifetime was not an implied revocation of the Will.
(1) Part 7. s. 15, pl. 2, s. 3.
Swinburne proceeds (pl. 4,) to put several cases where revocation shall be presumed, such as executor becoming the enemy of
the testator, and other instances, which are certainly not law at the present day.
(K) 4 A. & E. 582. S. C. 1 Nev. & P. 582.
Here it may not be improper to take notice of the case of contingent
Will. a contingent Will, where, whether it will eventually take place as a Will or not, depends upon the happening or not happening of a certain event. As where a person intending to go to Ireland, made his Will in these words :-“If I die before my return from my journey to Ireland, that my house and land at F., and all the appurtenances and furniture thereto belonging, be sold as soon as possible after my death, and thereout all my debts and funeral charges be paid. Item, 10001. to A., out of the said money arising by the said sale, and 1001. to B.:” The testator, after making the said Will, went to Ireland, and returned to England, lived some years afterwards, and died : It was held by Lord Hardwicke that the Will was contingent, depending upon the event of the testator's returning to England, or not; and that as he did return, the Will could have no effect, but was void (1) The Courts, however, are cautious how they construe conditions of this sort. Therefore, where a testator by three letters gave certain testamentary directions, “in case I should die on my travels," it was held, that, although he returned, and lived many years afterwards, yet as, by subsequent acts, he recognised the papers two years before his death, his return was not such a defeasance as to invalidate the disposition of his property directed by them (m). In Burton v. Collingwood (n), a Will written eighteen years before the testator's death, containing this passage, “Lest I die before the next sun, I make this my last Will,” was admitted to probate, the Court holding the disposition not contingent; and adherence to it being shown by careful preservation (o).
(1) Parsons v. Lanoe, 1 Ves. Sen. regular codicil to my Will, I desire 190. 1 Saund. 279, d. note to the following to be taken as a coDuppa v. Mayo.
dicil thereto," the Court had in (m) Strauss v. Schmidt, 3 Phillim. many instances decided that it 209. See also Ingram v. Strong, 2 means no more than, “ Till I make Phillim. 294. In Forbes v. Gordon, a regular Will, so long I adhere to 3 Phillim. 625, Sir John Nicholl
this paper.” said, that where a paper begins, (n) 4 Hagg. 176. “In case of my inability to make a (0) See also Bateman v. Pen
by some act done by the testator
sed on his burning, cancelling, making
in I was only to man," says Swinburne (1),
Par contingency, testament once made, ui?
if testamentary, a man do live by the si
..sn a legal form, so his testament, yet i
21 shee the New Wills' voked by the con
je daly executed and the same time l'
more the Will, and cannot yet is not the
mire intention that the Will the testair have the
* a paper is to be consithose
..:: isposition, proprio vigore, the
: etfeet as such, and is not A
tri presumption or evidence of Le paper of instructions, or other soury to a regular Will or codicil,
itself, may be abandoned, and *upee of time to be abandoned, not
in ve paper might be admitted to probate, su se operation of the New Wills' Act), if ww.cinot expressed were shown to have been
deer suihered to up to the period of the Hit the formal execution of those inten. stru prerented by the act of God (2). wat kung pussessed of a sound mind, makes his
essa situa sterwanis is overtaken with insanity, yet > Wizyonda disability does not disannul the preceding le Willir
e vet * Now P. C. C 23. witnesses, disposing of land, (pur
on Hewan het, 18 Jur. 136. porting to be bequeathed in the de sketches, en unattested letter) appointing his wife executrix
Precious of realty and guardian of his children, but ali v neodditional on
not referring to the letter, nor to in ssring during a visit
his personalty : In the goods of delle was hut amitted to
Ward, 4 Hagg. 179. wel a Area, the par- (P) Stockwell v. Ritherdon, 1 RoAm Me debatten mitors) the
bert. 661. S. C. 6 Notes of Cas. 409. HERRER dating turned from Ir
(a) 2 Moore, P. C. C, 154, 156. innie and herings studsequently See ante, p. 64, 95. Ave Wasted by three (r) Swinb. Pt. 2, s. 2, pl. 3.
.., being then unmarried, made mutual Mutual Wills.
i of one of them was afterwards revoked ", it was held that the other remained un
1 lugh it should appear from the contents of a codicil Will forgotten
by testator. Hit the testator had forgotten the appointment of an exe(utor, by a prior codicil, this shall not amount to a revocation of such appointment (t).
A strong example of the rule, that mere change of the Marriage of condition of the testator could not work an implied revoca- not revoke his
testator did tion, occurs in the fact, that before the new Statute of Wills Will, prior to
the stat. 1 Vict. (1 Vict. c. 26, s. 18, post, p. 175), his subsequent marriage c. 26 : did not in itself produce that effect (u). It is true, that if a woman made a Will, and afterwards married, the marriage alone was a revocation of the Will. But this was on a different principle from presumption, viz., that as it is in the nature of a Will to be ambulatory during the testatrix's secus, of a tes
tatrix. life, and marriage disables her from making any other Will, the instrument ceases to be any longer ambulatory, and must consequently be void. Therefore, generally speaking, the Will of a feme sole ceased to have any operation after she became covert (x). And although the wife should survive the husband, yet the Will would not revive after the lius. band' death without a republication (y). But where an
Forse and Hembling's case, 4 Co. 61, b.
See in re Thompson, 1 Russ. & M. 355, where the Will of a testator subsequently found to be lunatic, was directed to be deposited in the custody of the Master.
(s) Hinckley v. Simmons, 4 Ves. 160.
(1) Sherard v. Sherard, 2 Phillim. 251.
(u) 1 Phillim. 467, post, p. 170.
(2) Forse and Hembling's case, 4 Co. 60, b. Doe v. Staple, 2 T. R. 695, 667. Cotter v. Layer, 2 P. Wms. 624. Hodsden v. Lloyd, 2 Bro. C. C. 514. 1 Saund. 279, c.
Lord Coke in Forse and Hembling's
(y) Lewis v. Bulkeley, Delegates,