Generally speaking, where a Will contains a general revo. catory clause, it operates a revocation of all prior testamentary acts. But there has already been occasion to point out (e), 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. SECTION IV. 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). SECTION V. 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, s. 19) that "no Will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." The general rule has been, from the earliest periods of 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. 138. (g) Post, Pt. 1. Bk. II. Ch. IV. § 11. p. 178, et seq. VOL. I. M 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. (h) Part 7. s. 15, pl. 2, s. 3. (i) 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. Will. Here it may not be improper to take notice of the case of Contingent 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, 1000l. to A., out of the said money arising by the said sale, and 100l. 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. 190. 1 Saund. 279, d. note to Duppa v. Mayo. (m) Strauss v. Schmidt, 3 Phillim. 209. See also Ingram v. Strong, 2 Phillim. 294. In Forbes v. Gordon, 3 Phillim. 625, Sir John Nicholl said, that where a paper begins, "In case of my inability to make a regular codicil to my Will, I desire (n) 4 Hagg. 176. (0) See also Bateman v. Pen by some act done by the testator the testan have the those the fa paper is to be consiEsposition, proprio vigore, ase effect as such, and is not ..ery presumption or evidence of sers paper of instructions, or other story to a regular Will or codicil, ved in itself, may be abandoned, and aapse of time to be abandoned, not raper might be admitted to probate, the operation of the New Wills' Act), if ou expressed were shown to have been s been shered to up to the period of the essed the formal execution of those inten sa ating keu prevented by the act of God (q). aat, bong possessed of a sound mind, makes his Sovanny and adderwards is overtaken with insanity, yet sequent disability does not disannul the preceding Examing of last Will (7), Your P. C. C. 223. Ingmasa Dižen, 18 Jur. 186. 6. u waders, an unattested Cites supreme vo dispose of realty Y&nd conditional on Acer's jung during a visit * Deding was not admitted to KOLE MAMMA form, the parna madai ding minors) the we having returned from Irewn and taring subsequently And a W2 attested by three witnesses, disposing of land, (purporting to be bequeathed in the letter) appointing his wife executrix and guardian of his children, but not referring to the letter, nor to his personalty: In the goods of Ward, 4 Hagg. 179. (p) Stockwell v. Ritherdon, 1 Robert, 661. S. C. 6 Notes of Cas. 409. (q) 2 Moore, P. C. C, 154, 156. See ante, p. 64, 95. (r) Swinb. Pt 2, s. 2, pl. 3. being then unmarried, made mutual Mutual Wills. of one of them was afterwards revoked ge, it was held that the other remained un gh it should appear from the contents of a codicil Will forgotten the testator had forgotten the appointment of an executor, by a prior codicil, this shall not amount to a revoca tion of such appointment (t). by testator. Marriage of testator did not revoke his Will, prior to the stat. 1 Vict. c. 26 : A strong example of the rule, that mere change of the condition of the testator could not work an implied revocation, occurs in the fact, that before the new Statute of Wills (1 Vict. c. 26, s. 18, post, p. 175), his subsequent marriage 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 teslife, 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 husband's 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. (t) Sherard v. Sherard, 2 Phillim. 251. (u) 1 Phillim. 467, post, p. 170. (x) Forse and Hembling's case, 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. 544. 1 Saund. 279, c. Lord Coke in Forse and Hembling's (y) Lewis v. Bulkeley, Delegates, tatrix. |